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Libertarian Squishiness:

This morning's Times has a lengthy story about how Ted Olson came to file a federal lawsuit challenging the constitutionality of Prop 8 and, by implication, all laws limiting marriage to one man and one woman.

One interesting thing about the article is how few right-leaning commentators are cited as publicly criticizing Olson, a stalwart of the Federalist Society and the conservative/libertarian legal movement since the Reagan era. Robert Bork doesn't want to get into a public argument about it. He just wants to know why Olson joined the other team. William Bradford Reynolds mildly chides Olson for taking "a more assertive view of how one should interpret the Constitution than you would normally expect Ted to take."

A quote from Steve Calabresi implies that Olson's lawsuit might echo "a certain libertarian squishiness at the Office of Legal Counsel [in the Reagan Justice Department] under Ted." I take Calabresi's suggestion at two levels. First is the idea that libertarians are often more willing than conservatives to support the use of courts to enforce favored policy outcomes. That's debatable given the experience of recent years, but let's leave to one side the overlay of the judicial role specifically in bringing same-sex marriage. One could fully support same-sex marriage, for any number of reasons, libertarian or otherwise, and still not believe the judiciary should impose it.

The second implication is that libertarians support gay marriage. I think that's descriptively true: libertarians are far more likely than traditional conservatives to support same-sex marriage. But as a substantive policy matter, it's hard to see same-sex marriage as a genuinely libertarian cause. It enlarges the empire of marriage, and thus of state regulation. It's true that one voluntarily enters this system of regulation, but the government offers many special advantages and inducements to enter it. From a libertarian perspective, marriage is a subsidy made available to encourage us to lead a certain kind of life favored by the government, just as the state encourages us to own a home, go to college, contribute to charity, buy fuel-efficient cars, etc. In part because of its channelling and traditionalizing potential, same-sex marriage is a conservative cause, in my view, though I appear to be one of about five people in the country who actually believes this.

So what explains libertarian support for SSM? Libertarians have been more willing than traditional conservatives to oppose government-sponsored discrimination against gays and lesbians. Libertarians are also less likely to allow their religious views to dictate their public-policy preferences and are also less likely to presume that traditional practices should enjoy any presumption.

These considerations might lead a libertarian to support same-sex marriage as long as state-sponsored marriage remains, as seems likely. But I would think that's a second-best world for most libertarians, who would prefer a more privately ordered state of, shall we say, affairs.

It's also possible that some libertarians might support same-sex marriage as enlarging the "liberty" or choices of gay persons. But again this libertarian gain should be qualified: same-sex marriage is an induced choice to enjoy "liberty" within a very constrained and state-designed system of official recognition and obligation. In the popular conception, libertarianism is often confused with libertinism, perhaps because libertarians tend to support things like legalized prostitution and drug decriminalization. At the same time, gay marriage is sometimes identified with "sexual liberty," as one prominent academic supporter recently characterized it. But marriage would provide no sexual liberty gays do not already enjoy. Married gays are not really "free at last." They're more aptly described as unfree at last.

So I would not identify support for same-sex marriage with libertarian squishiness, or libertarian firmness, or libertarian anything. That doesn't especially bother me, since I'm not a libertarian. I'm at most a conservative with libertarian leanings, a faint-hearted libertarian. But I am curious about how actual libertarians arrive at their support for same-sex marriage, at least on libertarian grounds.

gerbilsbite:
I take Calabresi's suggestion at two levels. First is the suggestion that libertarians are often more willing than conservatives to support the use of courts to enforce favored policy outcomes.
I took that the other way, as though it was Calabresi's way of tactfully saying "Once we got Teddy and Rex Lee out and let Brad Reynolds take a firmer hand in DoJ operations, we got to use the Department much more effectively to promote right-wing ideology."

But then, I'm not particularly fluent in Calabrian. :)
8.19.2009 10:42am
Daniel San:
I think, if the government subsidy were a significant issue, we would see a higher rate of government workers getting married, for the insurance, and a lower rate of others because (for a 2 earner household) the tax penalty tends to be greater than any offsetting benefit.
8.19.2009 10:49am
Porkchop:

But again this libertaraian gain should be qualified: same-sex marriage is an induced choice to enjoy "liberty" within a very constrained and state-designed system of official recognition. Married gays are not really "free at last." They're more aptly described as unfree at last.


Yes, some comedian (whose name I can't recall) observed that gays deserve the opportunity to be as miserable as the rest of us.

Seriously, though, while a purist libertarian certainly can question state involvement in the definition of marriage, it seems to me that if one accepts that state involvement is unlikely to change in foreseeable future, then one can take the position that gays should be free to participate on an equal basis in the state-sanctioned system and still describe oneself as a libertarian.
8.19.2009 10:53am
ruuffles (mail) (www):
The article cites Romer and Lawrence, but doesn't mention how Olson stood on those, just that he's using them to bolster his current case. Does anyone know if he took a specific position on those cases?
8.19.2009 10:54am
DavidBernstein (mail):
It doesn't strike me as any odder that libertarians would support same-sex marriage once government is in the marriage business than that libertarians would support Brown v. Board of Education once government is in the education business. Not every libertarian will see same-sex marriage as purely an issue of government discrimination against gays, but if you do see the issue that way, it's certainly a principle of libertarianism (or classical liberalism) that the government may not invidiously discriminate in the benefits that it provides its citizens.
8.19.2009 10:56am
J. Aldridge:
The problem is Ted argues for Equal Protection of the Law lines for SSM, which amounts to arguing abortion and right to privacy is written in the federal bill of rights.
8.19.2009 11:03am
A Law Dawg:
The problem is Ted argues for Equal Protection of the Law lines for SSM, which amounts to arguing abortion and right to privacy is written in the federal bill of rights.


Since privacy and abortion jurisprudence stems from substantive due process, not equal protection, can you explain your statement?
8.19.2009 11:09am
Pragmaticist:
The pure libertarian position is that government should get out of the marriage business and that people should be allowed to enter into whatever marital contracts they wish.

Given that government has monopolized marriage, the issue is whether government should be able to forbid one to marry another just because of a person's sex. Libertarians would oppose laws that prevent one from marrying another on the basis of a person's race, religion, nationality, etc., hence they tend to oppose a law that would prevent one from marrying another on the basis of the person's sex.
8.19.2009 11:14am
Soldats (mail):
Or it could be the libertarian argument that withholding a contract (albeit one with the government) from a certain individual is wrong.

Marriage is the only way to grant a non-relative legal 'next of kin' status with a person. When viewed as a purely contractual matter, it's much harder to deny it to anyone.
8.19.2009 11:15am
Guest14:
Similarly, although a libertarian may disapprove of local governments providing fire fighting services, they will take a dim view of the governmental fire fighting service declining to fight fires in minority neighborhoods.
8.19.2009 11:18am
krs:

But as a substantive policy matter, it's hard to see same-sex marriage as a genuinely libertarian cause. It enlarges the empire of marriage, and thus of state regulation. It's true that one voluntarily enters this system of regulation, but the government offers many special advantages and inducements to enter it. From a libertarian perspective, marriage is a subsidy made available to encourage us lead a certain kind of life favored by the government, just as the state encourages us to own a home, go to college, contribute to charity, buy fuel-efficient cars, etc.

Interesting post. I agree with Prof. Bernstein. Even if a libertarian thinks that the government should get out of the marriage business entirely, there's nothing strange about that same person thinking that as between the following two outcomes, (B) is better: (A) government is in the marriage business, marriage for heterosexual couples only, and (B) government is in the marriage business, marriage open to homosexual and heterosexual couples.

Given your comments about "second-best," you seem to understand this, but I don't see why that makes same-sex marriage less than a "genuine" libertarian cause.

Also, does being a libertarian mean that you have to believe that the government should get out of the marriage business entirely?
8.19.2009 11:23am
p.d.:
Anyone else get the sense that the writer was trying to reassure her NYT readers that "don't worry, Olson's just the exception that proves the rule -- all the other conservative lawyers are as bigoted as you presumed"?
8.19.2009 11:24am
Thoughtful (mail):
"Yes, some comedian (whose name I can't recall) observed that gays deserve the opportunity to be as miserable as the rest of us"

All of them...
8.19.2009 11:32am
Ilya Somin:
I am curious about how actual libertarians arrive at their support for same-sex marriage, at least on libertarian grounds.

The answer, I think, is fairly simple. I would prefer that the government get out of the business of defining and regulating marriage altogether. However, unless and until it does so, I prefer that it treat gay and straight marriage equally. Similarly, I also prefer that it not discriminate against interracial and interfaith marriages.
8.19.2009 11:34am
Hanoch:
Mr. Olson's decision is best described as "moral squishiness" (and that is being very generous to the former AG).
8.19.2009 11:35am
ShelbyC:

He just wants to know why Olson joined the other team.


Hey, just because he is against prop 8 doesn't mean he joined the other team.
8.19.2009 11:37am
Ken Arromdee:
Similarly, although a libertarian may disapprove of local governments providing fire fighting services, they will take a dim view of the governmental fire fighting service declining to fight fires in minority neighborhoods.

I think that's the right answer. Ideally, libertarians don't want government to be involved at all in such things. But given that government is involved, relatively fair involvement is better than relatively unfair involvement.

I'll also point out that marriage can't really be characterized from a libertarian standpoint as "unfree at last". The benefits one gains from having the government recognize a marriage are, in general, things that libertarians don't consider a reduction of freedom. For instance, it isn't "unfree" to make it easy for your spouse to inherit, because libertarians don't think the government should be interfering in inheritances in the first place.
8.19.2009 11:39am
Today's Tom Sawyer:
As a libertarian, I agree with Professor Somin's statement above. However, I will add that libertarian support of SSM only controls the behavior of the state in regards to the recognition of marriage. Conservatives, when arguing against gay marriage, like to bring up the rights of the faith/church to deny performance of said ceremonies and recognition (which I also agree with as a libertarian), but only the authoritarian left is making the argument that faith/churches should be strong-armed in this manner. Creating problems where none exist is why I am somewhat leery of calling the Fed Soc "/libertarian."
8.19.2009 11:42am
Randy R. (mail):
" Robert Bork doesn't want to get into a public argument about it. He just wants to know why Olson joined the other team. "

Right. And if you believe that, I have a bridge in Brooklyn I can sell you.

Now, it may be true that Bork doesn't want a public spat about this (he belongs to the Reagan era of never talking badly about another conservative), but I hardly think he is approaching this as a mere grape to chew off the intellectual feast.
8.19.2009 11:45am
ShelbyC:
For me, it's very simple. Gay marriage makes people happy, and it doen't cost me anything. Simple math that overrides all other arguements.
8.19.2009 11:46am
Randy R. (mail):
Tom Sawyer: "Conservatives, when arguing against gay marriage, like to bring up the rights of the faith/church to deny performance of said ceremonies and recognition (which I also agree with as a libertarian), but only the authoritarian left is making the argument that faith/churches should be strong-armed in this manner. "

Not at all true. The authoritarian left, as you call it, has explicitly agreed that no church should be forced to marry anyone at all. In fact, it is written into several bills. And indeed, while SSM has been legal in Massachusetts for several years now, not a single church has been forced to do anything against their faith.
8.19.2009 11:49am
TGGP (mail) (www):
I'm a (radical) libertarian and I agree. Giving more people state-mandated marriage benefits is a loss from a libertarian perspective.
8.19.2009 11:51am
Aultimer:
The more frightening way to take Calabresi is that he believes that the right wing party line should overrule principle (whether libertarian or otherwise, it's all squishy compared to the firm bulwark of Rush's deep conviction).

On the merits, IS and Bernstein have it right, although "mainstream" libs and rebublicans are loathe to acknowledge that libertarians can be pragmatic in such situations.
8.19.2009 11:53am
Today's Tom Sawyer:
Randy R. "Not at all true. The authoritarian left, as you call it, has explicitly agreed that no church should be forced to marry anyone at all. In fact, it is written into several bills. And indeed, while SSM has been legal in Massachusetts for several years now, not a single church has been forced to do anything against their faith."

When I refer to the authoritarian left, I am meaning a specific subset of liberals that believe that the government should force beliefs (especially concerning moral pluralism) on others. I have seen quite a few SSM amendments that specifically carry a provision that entitles churches to not recognize them if they are against their beliefs. But there are definitely some (especially in the gay rights movement) who think that provisions weaken their stance. On the downside, they also tend to be the most vocal about the issue. Obviously, a sensible inclusion of such measures would take a lot of the heat out of the debate for many people.
8.19.2009 11:55am
Hanoch:
SG, that is.
8.19.2009 11:55am
Fred Beloit (mail):
Grounds? I don't see them, do you? Right now all of us have equal rights, men may marry women and women may marry men, old as history, and probably beyond, in all cultures. So equality before the law is fact. Repeat, there is no question of inequality of rights before the law.
But gays want special rights. They want men to be able to marry men and women to marry women. This request for special rights requires legislation, not court action. I am very disappointed in Mr. Olson.
8.19.2009 12:02pm
Derrick (mail):
When I refer to the authoritarian left, I am meaning a specific subset of liberals that believe that the government should force beliefs (especially concerning moral pluralism) on others.


I'm guessing that this is the same unprovable and made up liberal sub-set who wants to kill grandma and make you subservient to the state.
8.19.2009 12:04pm
Randy R. (mail):
Tom Sawyer " But there are definitely some (especially in the gay rights movement) who think that provisions weaken their stance. On the downside, they also tend to be the most vocal about the issue. "

Well, then, can you identify any?
Sorry, but that's still not true. There is not a single gay rights organization that states that any church should be forced to do something against their faith. I don't know of a single spokesperson, self-proclaimed or otherwise, who has argued for that either. If you can find an example, please do so.

There have been people who have argued that such language is unnecessary, as the First Amendment already protects religions of all kinds. But that's a far cry from saying that they want to force any faith into recognizes SSM.
8.19.2009 12:06pm
Randy R. (mail):
Fred: And it used to be that blacks married blacks, and whites married whites. And that Christians could only marry Christians, and Jews only Jews. And everyone was happy because they all had equal rights. Then some of these people got all uppity and started claiming special rights to marry whomever they wanted.

And it's been all downhill every since.
8.19.2009 12:09pm
Randy R. (mail):
Tom Sawyer: "When I refer to the authoritarian left, I am meaning a specific subset of liberals that believe that the government should force beliefs (especially concerning moral pluralism) on others."

(Sigh). If only people such as yourself had similar compunctions about the authoritarian right, which wants to force ITS beliefs upon the government. Things like, "homosexuality is wrong and the gov't shouldn't promote it", or "we don't like gay marriage, so let's prohibit it for everyone."

Why is it that it's okay for them to impose their beliefs upon everyone else, but you remain silent?
8.19.2009 12:15pm
rick.felt:
" Robert Bork doesn't want to get into a public argument about it. He just wants to know why Olson joined the other team. "

Right. And if you believe that, I have a bridge in Brooklyn I can sell you.
I dunno, maybe Bork really doesn't want to get in a public fight with Olson. I don't know anything about the history of their interactions, but by any measure Olson and Bork are very bright conservative lawyers. It wouldn't surprise me at all if they were friends. Perhaps Bork doesn't want to get in a heated public argument with his friend on an issue that might not interest Bork that much.s
8.19.2009 12:17pm
ShelbyC:

...made up liberal sub-set who wants to [...] make you subservient to the state.


Made up my rear end. They're already waaaay too interested in what I have for dinner even without state health care. Wait 'till they're able to calculate how much eating a plate of carne assada fries costs the health care system...
8.19.2009 12:18pm
Houston Lawyer:
So libertarians are in favor of the courts re-writing the most basic rules of the social contract of society without the consent of the governed? There is a huge difference between this position and in supporting SSM through normal legislative means.

Also, is there a libertarian argument against polygamy?
8.19.2009 12:19pm
Randy R. (mail):
I agree. But Bork has never shied away from the culture wars, and indeed has relished his role in it. And gays get him particularly riled up (we are intent on destroying civilization, it seems, and he has to push back to save us all). So it's doubtful that he isn't very interested in this.
8.19.2009 12:20pm
Joshua (mail):
As I've pointed out before, one significant problem with doing away with state sanction of marriage is that it would effectively deny marriage to non-religious couples, gay or straight. Atheism, by definition, has no religious organization, and therefore no institutional infrastructure capable of sanctioning or administering to marriages as a church, or the state, is capable of doing.

Whether such a state of affairs would amount to unconstitutional discrimination against atheists is questionable at best, but in any case it's still not likely to fly politically with those who want to get married in spite of their secular outlook.
8.19.2009 12:22pm
Randy R. (mail):
Houston Lawyer: "So libertarians are in favor of the courts re-writing the most basic rules of the social contract of society without the consent of the governed?"

Sure. That's because we have found that 're-writing the most basic rules of social contract of society" really don't amount to anything at all and is just hyperbole. Unless, of course, you can identify what exactly has changed in places such as Massachusetts, Vermont, Canada, Spain, and the numerous other countries that have done so.
8.19.2009 12:22pm
Derrick (mail):
Made up my rear end. They're already waaaay too interested in what I have for dinner even without state health care. Wait 'till they're able to calculate how much eating a plate of carne assada fries costs the health care system...


If that's the best slippery-slope argument that you have, then we aren't really moving toward becoming communist China. I mean Bush was really interested in people owning homes, Reagan and his wife were really interested in all of "saying no to drugs", yet somehow freedom's light still flickers. (one tear)

Scene.
8.19.2009 12:24pm
A Law Dawg:
Fred,

It is inequal by definition to say that X may do something and Y may not.

If male may marry female, but female may not, then you have an inequality. What is the rationale (not the history, but the rationale) for that distinction?

If female may marry male, but male may not, then you have another inequality. What is the rationale for that distinction?
8.19.2009 12:26pm
Gabriel McCall (mail):
First is the suggestion that libertarians are often more willing than conservatives to support the use of courts to enforce favored policy outcomes.

This is a not unreasonable generalization. To the extent that a government action represents an unjust intrusion on personal liberty, any effective means in countering that intrusion are justifiable so long as the rights of others are not violated. (Even if they are, an argument could be made that that's the fault of the government actors, not the libertarian defending himself against them.)

A commitment to the stability of the system, at the expense of its results, might well be one of the defining differences between conservatives and libertarians. Libertarians typically care much more about just outcomes than they do about the particular structural avenues by which they are achieved.
8.19.2009 12:26pm
rick.felt:
And it used to be that... Christians could only marry Christians"

When was that?

I'm genuinely curious. I've never heard of a prohibition on Christians marrying non-Christians, but you must know of one. I would be very interested to see it.

Miscegenation laws were justified in part on a (Protestant) eisegesis of scriptures that were silent on the issue. (Catholic Tradition never disapproved of interracial marriages). But it would be really hard to argue against Paul's qualified approval of marriage to non-Christians.
8.19.2009 12:27pm
Aultimer:

Houston Lawyer:
So libertarians are in favor of the courts re-writing the most basic rules of the social contract of society without the consent of the governed? There is a huge difference between this position and in supporting SSM through normal legislative means.

No. Read more closely.

Also, is there a libertarian argument against polygamy?

No, except that polygamy as practiced often raises issues of ability to consent, so we're on the mainstream side there.
8.19.2009 12:27pm
Paul A'Barge (mail):

So what explains libertarian support for SSM?


Perhaps a lot of Libertarians are homosexuals.

Or, perhaps there is a higher percentage of libertarians in the homosexual community.
8.19.2009 12:27pm
A Law Dawg:
So libertarians are in favor of the courts re-writing the most basic rules of the social contract of society without the consent of the governed? There is a huge difference between this position and in supporting SSM through normal legislative means.


Did it occur to you that they could be upholding the social contract?
8.19.2009 12:27pm
Aultimer:

Joshua (mail):

Atheism, by definition, has no religious organization, and therefore no institutional infrastructure capable of sanctioning or administering to marriages as a church, or the state, is capable of doing.


Contracts are quite sufficient - no further infrastructure is required.
8.19.2009 12:31pm
Bobby:

(Sigh). If only people such as yourself had similar compunctions about the authoritarian right, which wants to force ITS beliefs upon the government. Things like, "homosexuality is wrong and the gov't shouldn't promote it", or "we don't like gay marriage, so let's prohibit it for everyone."

Why is it that it's okay for them to impose their beliefs upon everyone else, but you remain silent?


...Or, maybe he was referring to the authoritarian left because that's what the discussion is about (a la forcing churches to recognize and perform SSM). I'm not saying TS is correct, but don't assume just because he made no mention of the "authoritarian right" that he doesn't feel the same way about that. Maybe he does, but I think it is incorrect for you to assume so.
8.19.2009 12:32pm
Randy R. (mail):
rick.felt: "I've never heard of a prohibition on Christians marrying non-Christians, but you must know of one. I would be very interested to see it."

In "History of Roman-Dutch Law," the author states that the laws prevented Jews from marrying Christians, and states that this had its origin in Church decree. This was prevelant during the renaissance.

As another source, the Council of Elvira (Spain) prohibited such marriages, and that was in the 4th century. Of course, throughout the entire Inquisition period, no Christian could ever marry a Jew, and that didn't end until the beginning of the 19th century.

There are many examples of this, mostly dating from the middle ages and the renaissance. If you dig a bit, you will certainly find them.
8.19.2009 12:44pm
Randy R. (mail):
Bobby: "Maybe he does, but I think it is incorrect for you to assume so."

You are correct, and I shouldn't have made the assumption. And Tom Sawyer may prove me wrong yet. Over to you, Tom....
8.19.2009 12:45pm
cmr:
One of the main problems I have with the Libertarian stance on SSM is that it doesn't account for why we have these economic incentives and legal instances of marriage in the first place, and why, historically, they have only gone to heterosexual monogamous couples. The position is so base and non-analytical. "Well, you get it. They should too. Who cares?" No. That's not why we receive benefits. The government parses benefits all the time for substantive reasons, and sometimes for arbitrary reasons.

I would agree that people shouldn't be actively denied state-sanctioned benefits on the basis of their sexual orientation, but I would deny the idea that marriage being what it is currently in most places is an arbitrary denial of those benefits just because some people are gay and lesbian, as well as I would deny that defining marriage as being one thing is an active denial of something else, even if one of those things prompted enshrining the definition into law.
8.19.2009 12:47pm
rick.felt:
Randy R.:

I had forgotten about Elvira. Thanks for the reminder.
8.19.2009 1:17pm
John Howard (eggandsperm.org) (mail) (www):
If male may marry female, but female may not, then you have an inequality. What is the rationale (not the history, but the rationale) for that distinction?

It would mean allowing genetic engineering, which would be really bad public policy and be very expensive and unsustainable and drain our energy resources and require huge government agencies and insurance and lawyer teams to map out the legal ramifications and regulations. We should not allow people to have equal rights with someone of the same sex, people should only have the right to reproduce with someone of the other sex.

Libertarians are usually Transhumanists who oppose a law against genetic engineering, that's what makes them libertarians. But Transhumanists are actually very controlling, they want to make "better humans" after all, so they have a minor little conflict that they prefer to not think about.
8.19.2009 1:35pm
Usual suspect:
Law Dog wrote:
> It is inequal by definition to say that X may do
> something and Y may not.

> If male may marry female, but female may not, then you
> have an inequality. What is the rationale (not the
> history, but the rationale) for that distinction?

Should we allow men to marry their mothers? Right now it's inequal by definition that people can marry non-relatives, but cannot marry relatives.
8.19.2009 1:35pm
A Law Dawg:
It would mean allowing genetic engineering


Wait, what?
8.19.2009 1:46pm
A Law Dawg:
Should we allow men to marry their mothers? Right now it's inequal by definition that people can marry non-relatives, but cannot marry relatives.


I'm not sure how that's relevant. Let me get more specific.

Why can a 90-year old man marry a 90-year old woman, but a 90-year old woman cannot marry a 90-year old woman?
8.19.2009 1:49pm
John Howard (eggandsperm.org) (mail) (www):
Reproducing with someone of the same sex requires modifying one of the couple's genes, so that it is imprinted and packaged complementarily, so that it is able to form a viable embryo.

A 90 year old can marry because we don't set any age limits, we all retain the right to attempt to procreate until we die. But we shouldn't have the right to attempt to procreate with our mother or with someone of the same sex.
8.19.2009 2:06pm
NYCLaura (mail):
If male may marry female, but female may not, then you have an inequality. What is the rationale (not the history, but the rationale) for that distinction?


It would mean allowing genetic engineering, which would be really bad public policy and be very expensive and unsustainable and drain our energy resources and require huge government agencies and insurance and lawyer teams to map out the legal ramifications and regulations. We should not allow people to have equal rights with someone of the same sex, people should only have the right to reproduce with someone of the other sex.


The discussion is on marriage, not reproduction. Since the law does not require a statement of intent to reproduce nor proof that one has a child with the partner named in the marriage contract through heterosexual intercourse with no medical intervention...

Then the question is why can't they marry?

And I would find it hard to believe a "libertarian" would like to ADD such requirements to marriage contracts, thus removing an even larger number of citizens from being able to get hitched, not to mention the draconian vision of people forced to prove and demonstrate fertility. Perhaps calling in a "birth panel" might help.
8.19.2009 2:07pm
Clayton E. Cramer (mail) (www):
What a lot of people don't seem to understand is that one of the factors that tends to push many people to one side or the other of the conservative/libertarian divide is their view of Christianity. Those who are not Christians, or who have any substantial hostility towards Christianity, tend to think of themselves as libertarians.

Now, there are people who are very doctrinaire conservatives who are atheists, and doctrinaire libertarians who are Christians, but religion tends to be a big factor in causing this divide.
8.19.2009 2:08pm
John Howard (eggandsperm.org) (mail) (www):
No couples that are prohibited from procreating have ever been allowed to marry. Marriage has always expressed approval of procreating. They don't have to, obviously, but marriage always should support and approve. We should not strip the protection of procreation rights form marriage by thinking we can give marriage licenses to couples that are prohibited from marrying.

Libertarians that are hung up on being libertarians don't even support laws against adult incestuous reproduction, let alone against genetic engineering.

And yes, the discussion may be on marriage, but scratch a libertarian and you'll usually find a transhumanist, deceitfully not discussing what the discussion is really about for them.
8.19.2009 2:14pm
John Howard (eggandsperm.org) (mail) (www):
should read: "We should not strip the protection of procreation rights form marriage by thinking we can give marriage licenses to couples that are prohibited from procreating." (and that gives me a chance to point out, the right is to use our own unmodified gametes, to have our own children with a person of our choice, using their own unmodified gametes)
8.19.2009 2:17pm
Randy R. (mail):
cmr: "The position is so base and non-analytical. "Well, you get it. They should too. Who cares?" "

Actually, it has been pointed out many times on the VC why SSM deserve the same benefits. For example, there are thousands of gay couples who have children. The argument is that the children of gay couples should have the same rights, privileges and benefits of straight married couples should. That's hardly base and non-analytical.
8.19.2009 2:19pm
Randy R. (mail):
Clayton: "Those who are not Christians, or who have any substantial hostility towards Christianity, tend to think of themselves as libertarians.:

A substantial number of Roman Catholics believe in the right to have an abortion and the right to SSM. There are a number of Christian churches which are fairly liberal on many social issues as well. I guess all of them would be hostile to Christianity?
8.19.2009 2:21pm
Steven Horwitz (mail) (www):
For this radical libertarian, SSM is the only just solution GIVEN the state's involvement in marriage. It's the world of the second best, and in that world this is the appropriate policy. Libertarians are quick to talk about limiting the power of the state over the individual, and rightly so. But it's also part of our liberal heritage to be committed to equality before the law. So IF the state is going to regulate marriage, it should not discriminate in favor or against any particular group. Yeah, the state should be out of the game altogether, but if it's gonna play, it's gotta play fair.
8.19.2009 2:32pm
Dilan Esper (mail) (www):
What a lot of people don't seem to understand is that one of the factors that tends to push many people to one side or the other of the conservative/libertarian divide is their view of Christianity. Those who are not Christians, or who have any substantial hostility towards Christianity, tend to think of themselves as libertarians. Now, there are people who are very doctrinaire conservatives who are atheists, and doctrinaire libertarians who are Christians, but religion tends to be a big factor in causing this divide.

There's something strange going on with the universe, because Clayton Cramer, rather than going off on a rant like he often does when the subject is homosexuality, instead made a measured, intelligent, insightful comment.

All snark aside, he's right, and more broadly and philosophically, I am not sure if Christian conservatives really realize the extent to which some of the positions they take are contingent on Christianity being a majority religion-- i.e., if someone else were making the rules, suddenly religious freedom, tolerance, and the principle of not writing one group's version of revealed truth into law would be more attractive to them.
8.19.2009 2:37pm
Usual suspect:
A Law Dawg wrote:


Should we allow men to marry their mothers? Right now it's inequal by definition that people can marry non-relatives, but cannot marry relatives.

I'm not sure how that's relevant. Let me get more specific.

It's directly relevant, because it's a restriction in the institution of marriage. Another restriction is a restriction against same sex marriages. If we are making marriage less restrictive, and more open to individuals' wishes than it makes sense to allow relatives to marry. A lot of people will want to marry relatives because of tax reasons (for example inheritance taxes). It doesn't make sense to allow people of the same sex to marry but prohibit men to marry their mothers
8.19.2009 2:38pm
Joseph Slater (mail):
scratch a libertarian and you'll usually find a transhumanist

Kinky!
8.19.2009 2:39pm
John Howard (eggandsperm.org) (mail) (www):
Actually, it has been pointed out many times on the VC why SSM deserve the same benefits. For example, there are thousands of gay couples who have children. The argument is that the children of gay couples should have the same rights, privileges and benefits of straight married couples should.

Randy, Civil Unions could provide all the benefits of marriage except conception rights. Congress should replace DOMA with the Egg and Sperm Civil Union Compromise which would recognize state civil unions defined as "marriage minus conception rights" as marriages for federal purposes. It would also prohibit genetic engineering, and affirm that all marriages protect the right to procreate using the couple's own genes.

Children of gay couples do not benefit from their parents attempting to create bio-related children, or from their parents even having the right to create bio-related children. It harms the children for their parents just to be demanding the right, since it implies they aren't loved as much as bio-related children would be.

Straight married couples also wouldn't be allowed to use genetically modified gametes, but that wouldn't affect their right to use their own genes to have children. Children don't necessarily benefit from their parents creating siblings to compete with, but it is a right of the parents that the child will someday want also.
8.19.2009 2:51pm
Ken Arromdee:
No couples that are prohibited from procreating have ever been allowed to marry.

I was unaware that gay couples are prohibited from procreating. They're not physically capable of it, but not being physically capable isn't the same thing as being prohibited.
8.19.2009 2:51pm
Ken Arromdee:
A 90 year old can marry because we don't set any age limits, we all retain the right to attempt to procreate until we die. But we shouldn't have the right to attempt to procreate with our mother or with someone of the same sex.

Why shouldn't we have the right to attempt to procreate with someone of the same sex? ("It won't work" can't be your reason, since you allow the attempt in other cases where it won't work.)
8.19.2009 2:54pm
John Howard (eggandsperm.org) (mail) (www):
Ken, currently there is no law against attempting same-sex procreation, but there should be. It is one of three proposed laws that make up the Egg and Sperm Civil Union Compromise. It would be like the Missouri Stem Cell Initiative Amendment of 2006, and the recommendation of the President's Council On Bioethics in 2004.

The reason we shouldn't have the right to attempt to procreate with someone of our own sex is that it would be really bad public policy, be really unsafe and unethical, be too expensive, waste too much energy for something that there is absolutely no need - not medical, not psychological, not financial - there is no need for same-sex procreation, and so much cost and danger.
8.19.2009 3:04pm
Cornet of Horse:
EV,

"In part because of its channelling and traditionalizing potential, same-sex marriage is a conservative cause, in my view, though I appear to be one of about five people in the country who actually believes this."

That was actually the original selling point of the idea, which is why Sully feels so betrayed these days, with some justification. Olson, and those slow to condemn him, just want(s) to shed the albatross of the current Republican stance (the prospects of which seem to be the polar opposite of LBJ's famous prediction on the effects of the Civil Rights Bill on the D Party). More power to him.
8.19.2009 3:16pm
Randy R. (mail):
Usual suspect: "It doesn't make sense to allow people of the same sex to marry but prohibit men to marry their mothers"

Well, if you think that marriage is only about a package of benefits, then I guess you are correct. But marriage is about two people who are in love with each other and want to care for each other.
8.19.2009 3:17pm
Putting Two and Two...:

There's something strange going on


No kidding!

As to why lots of folks aren't publicly upset with Olson, it's a gig. He's being paid to present an argument for an issue to which he has devoted zero interest over the years. Yes, yes, he and Boies (who didn't even make the first page of the article!) are working "partially pro-bono".

He's no "champion". He's a hired gun on a reckless mission.
8.19.2009 3:24pm
Usual suspect:
Randy R. wrote:

Well, if you think that marriage is only about a package of benefits, then I guess you are correct. But marriage is about two people who are in love with each other and want to care for each other.

Are you saying that mothers don't love their sons and vice versa? The same applies for fathers and daughters. Love and mutual care between relatives is usually stronger than those of romantic interests. Romantic feelings fade away, sometimes very quickly, which is not the case for feelings between close relatives
8.19.2009 3:29pm
dangerous lack of something something:
I thought I'd read both sides until that egg and sperm blogadvertiser just appeared in the comments. I mean, wow. So many useful reasons to allow people to have children even though their personal tackle is not working properly or they don't own all the parts needed.

Even the simplest hypothetical scenario whereby a percentage of the population is rendered sterile due to some calamity would ask that science be prepared to deal with creating children in less than ideal circumstances. Life would ask for nothing less than the promise of a new generation, no matter how that life was created. Yikes! That is crazier than the environmentalists who want population control on humans...
8.19.2009 3:43pm
John Howard (eggandsperm.org) (mail) (www):
It would have to be a major calamity to justify creating babies from modified genes, and we should avoid calamities like that if possible. Overcoming infertility is medicine, being allowed to attempt to use your own gametes like healthy people can is a right, which implies a right to medical assistance, a right which is moderated by safety and ethical concerns but not denied, the way same-sex conception and designer GM babies ought to be.

The benefits of sticking with natural conception for everyone, so we all continue to be created equal, far outweigh transhumanist fantasies of 'better humans', even if they come true with minimal coercion and tragedy. Think sustainability.
8.19.2009 3:54pm
Kevin B (mail):

Tom Sawyer: I have seen quite a few SSM amendments that specifically carry a provision that entitles churches to not recognize them if they are against their beliefs. But there are definitely some (especially in the gay rights movement) who think that provisions weaken their stance. On the downside, they also tend to be the most vocal about the issue. Obviously, a sensible inclusion of such measures would take a lot of the heat out of the debate for many people.

Why would such a provision be limited to SSM? Don't you think churches should be entitled to not recognize ANY marriages that are against their beliefs? Shouldn't a church have a choice whether to recognize a remarriage following a divorce, for instance? And deny any benefits that it offers to people in "real" marriages?
8.19.2009 4:19pm
Boose:
Since there are associated government benefits, it doesn't make sense to only allow straight people to enjoy those benefits. I would rather the government not care about marital status, but that's not the case, so I'm pro gay marriage

and libertarian
8.19.2009 4:29pm
John Howard (eggandsperm.org) (mail) (www):
No, churches should have to abide by and respect civil authority, in fact, respecting civil authority is a central tenet of all religions, render onto Caesar, etc. Churches can not approve of remarriage following a divorce, but they certainly have to recognize it. Consider that if someone was in a same-sex marriage, but then converted to a church that didn't "recognize" his existing marriage and tried to marry again, the Priest would be guilty of a crime if he knowingly officiates a wedding he knows is civilly prohibited. He can't just ignore the existing wedding, it's a crime.
8.19.2009 4:29pm
Danny (mail):
I think that the natural inclination of libertarianism is to avoid discrimination, including based on sexual orientation or gender, for exactly the reasons that others have explained. It's not a coincidence that the Libertarian Party has the best platform for gay people of any American political party. Also, libertarianism is perhaps the only real coherent political philosophy currently in operation in the American political panorama, the other two parties being a wacky Christianist birther cult on one side, and an unprincipled confederation of lobbies, corporate and special interests on the other, and which adopts whatever position the poll numbers seem to suggest.

Libertarianism brings in an interesting mixture of people who are interested in the relationship between the State and citizens. People interested in property and gun rights debate SSM, while gay people may end up getting interested in libertarian persepectives on those issues, which would not have happened had gays had the support of a classic left-wing party.
8.19.2009 4:46pm
Kevin B (mail):

Consider that if someone was in a same-sex marriage, but then converted to a church that didn't "recognize" his existing marriage and tried to marry again, the Priest would be guilty of a crime if he knowingly officiates a wedding he knows is civilly prohibited. He can't just ignore the existing wedding, it's a crime.

Interesting point. But I'd say that in that case the second marriage would be recognized by the church and not by the state, which would still consider the person married to the original spouse. The marriage benefits (and responsibilities) recognized by the state would apply to the first marriage, unless it were legally dissolved.

Such a case does highlight the difference between religious marriage and civil marriage.
8.19.2009 4:46pm
Randy R. (mail):
usual suspect: "Are you saying that mothers don't love their sons and vice versa?"

Most emotionally mature people can understand the difference between loving one's spouse and loving one's parent or other relative. If you can't, then you should consult a therapist very soon.
8.19.2009 4:46pm
FWB (mail):
While there may BE only two sides, I say there are three. The Right, The Left, and those who are dead-on correct.

I do not support SSM BUT I do not support laws that violate the supreme rules for government behavior. The California state Constitution can be amended in any way the people of CA want EXCEPT for that pesky 14th. The 14th says equal protection and no law separating people into groupings is constitutional. That includes hate crimes, and EVERY other law that provides different protections to different persons. And protection is not just positive but may be negative (equally abusive) or nothing (no protection whatsoever) so long as it is equal protection for everyone.

Tiocfaidh ar la!
8.19.2009 5:00pm
josil (mail):
If SSM arrangements are favored by most libertarians and, of course LBGT advocates, why so little discussion of polygamous marriages. The only (and somewhat rare) comments I see from the principled libertarian side mention practical considerations. The absebse of logical oppostion to polygamy is a fly in their ointment. And, does SSM also subsume bisexual marriage?
8.19.2009 5:01pm
Joe T. Guest:
But I am curious about how actual libertarians arrive at their support for same-sex marriage, at least on libertarian grounds.


Consider the possibility, however remote, that perhaps life is not one long political litmus test in which one is either red or blue. I know it sounds incredibly far-fetched, but I think it's just possible that sometimes people hold beliefs that are not perfectly consistent with a party platform, or your perception of what their beliefs ought to be as a good liberal, conservative, libertarian, muslim, christian, or lawyer. Perhaps some libertarian thinks, in the far recesses of his mind, that maybe it isn't a bad idea to have a police force to protect us from crime. Perhaps there is some liberal somewhere who, in the middle of the night, listening to the clock tick, thinks that just maybe his marginal tax rates are a bit too high. It may even be possible that some social conservative, deep into the communion wine, thinks that maybe he could live with civil unions, or possibly gay marriage as long as it's a democratic decision and not inflicted by the courts, particularly the federal ones.

I know it's incredibly far-fetched, and it defies teh narrative (which requires the fight to be black and white, good vs. evilm no shades of gray here), but I think that in limited circumstances, this may be the case.
8.19.2009 5:26pm
Dilan Esper (mail) (www):
If SSM arrangements are favored by most libertarians and, of course LBGT advocates, why so little discussion of polygamous marriages. The only (and somewhat rare) comments I see from the principled libertarian side mention practical considerations. The absebse of logical oppostion to polygamy is a fly in their ointment. And, does SSM also subsume bisexual marriage?

I think to understand the answer to this you have to understand that there isn't any large group of polygamists contending that they have faced massive discrimination (including not only in marriage rights but also in other areas) and violence and harassment.

Thus, there isn't really anyone, other than people thinking about the issue on an abstract philosophical level, and people arguing the slippery slope (which I will get to in a second) presenting the claim that there is an urgent need to extend equal marriage rights to polygamists and polygamous bisexuals.

Now, I do understand that opponents of gay marriage raise a slippery slope concern, that the REASONING that supports a right to gay marriage would also support a right to polygamous marriage. I don't actually think that's true (1 partner vs. many is a very different issue than 1 same-sex partner vs. 1 opposite sex partner, and, as I note above, there isn't a recent history of systematic oppression of anyone in a relationship with more than one partner, as there is with gays and lesbians). But the main response to this is the fact that opponents of a particular policy are raising a slippery slope concern does not mean that it is incumbent on supporters to engage in detailed discussions of the theoretical end-state of the slippery slope.

In other words, in simple terms, LGBT activists talk about gays, and polygamists, because they are advocating for the rights of gays, not polygamists. It is opponents of gay marriage who keep on bringing up polygamy, and there's no particular reason why LGBT activists need to talk about a group of people whose claims they are not advocating.
8.19.2009 5:46pm
Dilan Esper (mail) (www):
In other words, in simple terms, LGBT activists talk about gays, and polygamists

This should read "and NOT polygamists".
8.19.2009 5:47pm
Randy R. (mail):
josil: "The only (and somewhat rare) comments I see from the principled libertarian side mention practical considerations. The absebse of logical oppostion to polygamy is a fly in their ointment. And, does SSM also subsume bisexual marriage?"

First, your comment about bisexual marriage doesn't make any sense. Either you marry a person of the opposite sex or the same sex. A gay man can marry a straight women, for instance, and that marriage would be legal, even if it's basically a sham. A bisexual woman can marry a bisexual man, a straight man or a gay man. But a bisexual woman can marry a woman of whatever orientation in only a few states today.

In other words, there is a difference between sexual orientation and gender, although the gay marriage issue does muddle it a bit.

As for polygamy, there is indeed a principled argument. A person who is straight naturally wants to marry an opposite sexed straight person, and indeed they can. A person who is gay naturally wants to marry another gay person, and mostly they are prohibited from doing so. For the straight man who wants to marry several straight women, he has the opportunity to marry *at least* one of the persons he wants to marry. A gay person has no such options.

Furthermore, there is no such sexual orientation defined as polygamy.
8.19.2009 5:47pm
Randy R. (mail):
Dilen said it much better than I can. Thanks
8.19.2009 5:49pm
Porkchop:
I don't really get the polygamy polemic -- is it supposed to be a slippery slope argument? I suppose that I have no objection to polygamy assuming that it is freely entered into by all parties. Really, it's none of my business who is sleeping with whom -- whether they are married or not. But I think it is realy a question for another day.

Further, the incidence of polygamous marriage (which I suspect would mostly be polygynous in American society) would be limited by the number of available women -- the market could only support a limited number of such marriages. I doubt that there are very many women in the US who would be interested in a 50% share (or less) in a husband. I suspect that polyandrous marriage would be even less attractive to men. But maybe my views are skewed because I have had so little (i.e., none)contact with polygamists, and therefore speculate baselessly. If there are any polygamists who follow the Volokh conspiracy, maybe they could chime in and set us all straight.

Ambrose Bierce may have had it right in the Devil's Dictionary: "BIGAMY, n. A mistake in taste for which the wisdom of the future will adjudge a punishment called trigamy."

It's hard work to be married to one spouse (especially if that spouse is me, according to my wife); why would anyone want to add more? (Aside from obvious fantasies that are unlikely to be fulfilled for most people, in or out of marriage.)
8.19.2009 6:43pm
cmr:
Actually, it has been pointed out many times on the VC why SSM deserve the same benefits. For example, there are thousands of gay couples who have children. The argument is that the children of gay couples should have the same rights, privileges and benefits of straight married couples should. That's hardly base and non-analytical.


Sure it is. A large part of the reason we have marriage benefits might be because straight couples can have children, but the main argument with even mentioning them is that children deserve to have a mother and a father. Same-sex couples can't provide that, so the idea that legal marriage is about their kids is erroneous.

In any event, this doesn't necessitate marriage. It could just mean civil union legislation. Libertarians don't want any government recognition of marriage, so I don't know how any of what you said pertains.
8.19.2009 7:32pm
cmr:
In other words, in simple terms, LGBT activists talk about gays, and polygamists, because they are advocating for the rights of gays, not polygamists. It is opponents of gay marriage who keep on bringing up polygamy, and there's no particular reason why LGBT activists need to talk about a group of people whose claims they are not advocating.


That's a fair point. Only problem is, much of the rhetoric used by the LGBT to advance the gay marriage cause -- mentioning all-encompassing sloganeering terms like equality, oppression, civil rights, equal protection, etc -- isn't necessarily case-specific. Gays have tried to advance the cause by arguing that it's essentially not a *gay* cause but a human/civil rights cause, when obviously it isn't.

That's why Prop 8 ads didn't exactly feature gay families. That's why the largest LGBT political action committee is called the HUMAN RIGHTS CAMPAIGN and not the GAY RIGHTS CAMPAIGN.

This careful parsing that leads to the "well, what about polygamy?!" retort is specifically courted by the gay community.
8.19.2009 7:38pm
Barton L. Jacka:
OK. I'll take a stab at this.

Marriage serves two governmental goals: (1) it reduces the likelihood
that either spouse will need governmental assistance; (2) it reduces
the likelihood that that either spouse will require governmental
intervention.

For example: (1) if I lose my job, I am less likely to need welfare
if I have a spouse; (2) I am less likely if I'm married to be out
carousing and getting into fights at night. (Remember these are goals
- they may not necessarily come to fruition.)

By the way, these goals fit in with the connection between marriage
and children: (1) it reduces the likelihood that one's child will
need governmental assistance (because, e.g., he'll have two, or at
least one (if the other dies) parent providing for his welfare); and
(2) it reduces the likelihood that the child will require governmental
intervention (because, e.g., he'll have two parents supervising and
educating him).

So, marriage, by allowing two persons to lock into place burdens and
benefits that, we hope, will reduce the need for governmental
assistance and intervention, helps reduce the role of government -
even though marriage is a governmental institution.

If you reduce one of the impediments to marriage (opposite-sexness),
then you're reducing the role of government vis-a-vis marriage.
8.19.2009 7:41pm
MatthewM (mail):
I agree with Mr. Carpenter here, and disagree with Prof. Somin. Gay marriage expands the aegis of the state over more aspects of human life. In this way it is different than analogies about precluding gays from teaching, public jobs, etc. In those cases, the state's size will not be affected -- if gays are prohibited from teaching, others will be hired to take their place. A principled libertarian should therefore oppose such policies as irrational and discriminatory.

But a principled libertarain should still oppose gay marriage -- even if he or she concludes that such an exclusion is irrational or discriminatory. Because gay marriage expands the governments power over yet another aspect of society. To a libertarian, the principle of human freedom (from the power of the state) trumps and principle of equality. Accordingly, libertarians should oppose gay marriage.
8.19.2009 8:05pm
Dilan Esper (mail) (www):
Only problem is, much of the rhetoric used by the LGBT to advance the gay marriage cause -- mentioning all-encompassing sloganeering terms like equality, oppression, civil rights, equal protection, etc -- isn't necessarily case-specific. Gays have tried to advance the cause by arguing that it's essentially not a *gay* cause but a human/civil rights cause, when obviously it isn't.

I don't see why this is such a huge point. Gays are saying that they are just like any other human beings and should be allowed to marry the person they love. That is what they are saying is a basic human right. They are not saying that they should be able to marry more than one person.

The only people who are bringing polygamy into the conversation are gay marriage opponents. There's nothing wrong with making a slippery slope argument if one believes that there will be a slippery slope, of course. But that doesn't impose any responsibility on gay marriage advocates to stop talking about how important it is that people be able to marry the person of their choice and to start talking instead about whether people are going to be allowed to marry multiple people.
8.19.2009 8:13pm
einhverfr (mail) (www):
MatthewM:

But a principled libertarain should still oppose gay marriage -- even if he or she concludes that such an exclusion is irrational or discriminatory.


Ummm.....

I think you mean to say that a principled libertarian (by your view) should oppose ALL state involvement with marriage and therefore oppose SSM as a special case of that.
8.19.2009 8:37pm
Danny (mail):

To a libertarian, the principle of human freedom (from the power of the state) trumps and principle of equality. Accordingly, libertarians should oppose gay marriage.


This doesn't make any sense to me. The gov't does not currently allow gay couples simply to go about their business and live in an unobstructed way. Currently the State says that in order to do A, B, and C with your partner, you have to have a gov't approved marriage certificate. The gov't then denies this document to gays who consequently have no freedom to do A, B and C at all.

The libertarian position would be to oppose discrimination, or more radically to remove the government's power to require people to be married to do A, B and C (let them be obtainable through private contracts). But no libertarian would say what you are saying, i.e. yes to the status quo of gov't intervention and yes to discrimination
8.19.2009 8:41pm
einhverfr (mail) (www):
cmr:

Sure it is. A large part of the reason we have marriage benefits might be because straight couples can have children, but the main argument with even mentioning them is that children deserve to have a mother and a father. Same-sex couples can't provide that, so the idea that legal marriage is about their kids is erroneous.


It seems that there are two possible ways to take this argument and IMO both are sure-losers.

The first is that marriage has historically been about child-rearing and in fact many societies have made infertility grounds for divorce. The questions then seem to be

1) Does widespread use of contraception, and married couples who don't intend to have kids undermine that case? Is the mere possibility of children sufficient even if many couples choose to be childless?

I find this argument unpersuasive. If a man who has had a vasectomy can get married, it isn't about the couple's kids either. What makes that different from two women getting married?

2) Suppose we argue that the widespread use of contraception does undermine this and that is a bad thing. Does this mean we want to outlaw contraception, vasectomies, etc? Should we make infertility grounds for divorce? Should we be fighting Griswold instead of Lawrence?
8.19.2009 8:43pm
Danny (mail):

Gays have tried to advance the cause by arguing that it's essentially not a *gay* cause but a human/civil rights cause, when obviously it isn't.


Gay rights are human/civil rights (for gay humans)


That's why Prop 8 ads didn't exactly feature gay families. That's why the largest LGBT political action committee is called the HUMAN RIGHTS CAMPAIGN and not the GAY RIGHTS CAMPAIGN.



That was a tactical mistake by incompetent CA gay organizations. They made the assumption that straight people just don't want to see gay people on TV because they are turned off by them.. but it's quite the opposite, the whole question of SSM doesn't make sense if we lose track of the real humanitarian problems affecting real people who need SSM and can't get it.
8.19.2009 8:47pm
einhverfr (mail) (www):
John Howard:

I share a lot of the concerns about GM babies. That opens up a ball of issues I don't want to consider here. However....

Since you are obviously of the opinion that gay marriage is wrong because natural conception (outside of artificial insemination) is not a possibility, then do you think that gay marriage as a change to our institution naturally follows from Supreme Court decisions (like Griswold) which state that couples have a Constitutional right to decide not to have kids?

Would you support banning contraception? Or prosecuting childless couples (who by choice are childless) for marriage fraud? Or have we come so far past that point, that gay marriage is the least disruptive option?
8.19.2009 8:50pm
Perseus (mail):
Now, there are people who are very doctrinaire conservatives who are atheists, and doctrinaire libertarians who are Christians, but religion tends to be a big factor in causing this divide.

Count me among the pagan "conservatives" who reject the mawkish notion that loving another person(s) is a sufficient reason for the state to dole out benefits and public recognition to such unions. And correct me if I'm wrong, but you don't actually have to state that you are in love with the person you are marrying in order to qualify for civil marriage.

I am not sure if Christian conservatives really realize the extent to which some of the positions they take are contingent on Christianity being a majority religion-- i.e., if someone else were making the rules, suddenly religious freedom, tolerance, and the principle of not writing one group's version of revealed truth into law would be more attractive to them.

On this issue, I don't see much difference between the more orthodox versions of Christianity, Judaism, and Islam.
8.19.2009 8:54pm
K.D.M.:
"But a principled libertarain should still oppose gay marriage -- even if he or she concludes that such an exclusion is irrational or discriminatory. Because gay marriage expands the governments power over yet another aspect of society. To a libertarian, the principle of human freedom (from the power of the state) trumps and principle of equality. Accordingly, libertarians should oppose gay marriage."

Hmm... isn't the 'segment of society' at issue here the institution of marriage/married couples? And hasn't it been pointed out that most principled libertarians already believe that the State, on principle, shouldn't be involved in the marriage bizness? So i guess the only principled thing a libertarian is to do is never get a marriage license from the state, lest they be inconsistent.

And for those principled and consistent libertarians living in a state with common law marriage who do not seek a marriage license but it is forced upon them by legislative fiat? VIOLENT ABSTINENT REVOLUTION!!
8.19.2009 8:54pm
Danny (mail):

Count me among the pagan "conservatives" who reject the mawkish notion that loving another person(s) is a sufficient reason for the state to dole out benefits and public recognition to such unions


A pagan authoritarian? So you're not even a Christianist, you just want to control other people's life for the power rush?
8.19.2009 9:00pm
Usual suspect:
Randy R. wrote:


usual suspect: "Are you saying that mothers don't love their sons and vice versa?"

Most emotionally mature people can understand the difference between loving one's spouse and loving one's parent or other relative.

So what? Most mature people (voters) in the state of California also understand the difference between gay marriage and traditional marriage and don't want the state to approve gay marriages. The arguments like "most mature people blah blah blah " work exactly against your point of view


If you can't, then you should consult a therapist very soon.

I'm sorry that you got your panties in a twist and resorted to cheap ad hominem attacks. You can try to pop a sedative pill and continue the conversation like a stable, mature person
8.19.2009 9:04pm
Freedom:
The REAL libertarian position is to end state involvement in marriage ALTOGETHER. Let individuals get married in churches, and enact statutes that allow easy formation of contracts to handle property, children ect...

Breach of the Contract should be handled like any other breach.
8.19.2009 9:34pm
Perseus (mail):
So you're not even a Christianist, you just want to control other people's life for the power rush?

As I've pointed out ad naseum, civil marriage imposes a whole host of legal obligations on third parties. So who's really trying to control other people's lives for the power rush here?
8.19.2009 9:36pm
JK:

So what? Most mature people (voters) in the state of California also understand the difference between gay marriage and traditional marriage and don't want the state to approve gay marriages. The arguments like "most mature people blah blah blah " work exactly against your point of view

So did mature people in Virgina decide that there was a difference between intra and inter racial marriage, and didn't want the state to approve inter racial marriage in Loving v. Virgina?
8.19.2009 10:04pm
http://volokh.com/?exclude=davidb :

The REAL libertarian position is to end state involvement in marriage ALTOGETHER.

Proving once again that all discussions among libertarians include an assertion that someone is not a REAL libertarian.
8.19.2009 10:54pm
DeezRightWingNutz:
I don't give a crap what discriminatory factor the government uses in restricting marriage.

Best) No subsidies
2nd Best) Subsidies for some
3rd Best) Subsidies for more/all

What's the difference between this and negotiated tax credits?
8.19.2009 10:54pm
Randy R. (mail):
cmr "A large part of the reason we have marriage benefits might be because straight couples can have children, but the main argument with even mentioning them is that children deserve to have a mother and a father. Same-sex couples can't provide that, so the idea that legal marriage is about their kids is erroneous"

I see. So the best solution is for children to choose their parents carefully. If they choose striaght parents, they get all the benefits of a married couple. but if the choose gay parents, they can and should be left in the cold because gay parents should not be allowed to get married. Brilliant!

Usual suspect: "I'm sorry that you got your panties in a twist and resorted to cheap ad hominem attacks. You can try to pop a sedative pill and continue the conversation like a stable, mature person."

Unfortunatly for you, I don't have any panties, but I do have a jockstrap. And it isn't in any sort of twist.

There is a clear difference between the romantic love between two people (think Romeo and Juliet), and filial love between a parent and child (think Princess Di and her sons). One of the fundamental differences is that one involves sex and the other does not. You made a statement which equated those very different types of love as though they are indistinguishable. If you wish to recant and correct your statement, please do so, and it would do you credit.

If, on the other hand, you wish to stand by it, by all means continue to do so. I would only ask that you support your contention with examples of a parent falling in love with his or her child and then attempting to marry. But please do not get angry at me for pointing out the fatal flaw that even a child can spot, okay?
8.20.2009 12:13am
TGGP (mail) (www):
http://volokh.com/?exclude=davidb:
You only say that because you're not a REAL libertarian!
8.20.2009 12:30am
Danny (mail):
@ Randy

There is no point in debating with homophobes because it's an existential hatred. It's like an ethnic hatred. You can bring out all the arguments in the world but they will just switch and grab at any other dishonest argument. They will still be against you because they hate you. That's why so many threads like this rehash the same feelings every week over and over again. Except for the rare truly religious literalist, reasons for banning SSM are virtually always based on emotion and animus - and you can't argue with that. In the US, mob rule is the rule. You can only wait for more old bigoted people to die off and wait for society to change, which is happening. If you can't wait, you leave for a more civilized country (which the world is not lacking).

If you went back to the 60s and interviewed white southerners who wanted segregated restaurants they would come up with all kinds of arguments for their position. But peel them back and you have the real reason: they just did not want to eat from the same plates and forks that those dark people used. Because it disgusted them, like spiders disgust many people. There is no answer to it. You plead your case with rational people, you fight and wait, year after year decade after decade, and hope for the best.
8.20.2009 12:47am
Perseus (mail):
It enlarges the empire of marriage, and thus of state regulation. It's true that one voluntarily enters this system of regulation, but the government offers many special advantages and inducements to enter it. From a libertarian perspective, marriage is a subsidy made available to encourage us to lead a certain kind of life favored by the government, just as the state encourages us to own a home, go to college, contribute to charity, buy fuel-efficient cars, etc.

It seems to me that from a libertarian perspective civil marriage would have a couple of advantages:

1) it conveniently bundles together a series of other contracts and legal arrangements that would otherwise have to be done separately.

2) it is more likely to be immediately recognized and accepted by others.

Sure, a libertarian would probably want to eliminate the egregious bloat of subsidies associated with it (which would make it more like a domestic partnership), but it could be justified as a way to reduce transaction costs.
8.20.2009 2:24am
Largo (mail):
So i guess the only principled thing a libertarian is to do is never get a marriage license from the state, lest they be inconsistent.

How does this follow, K.D.M.?

(I must say I enjoyed the "VIOLENT ABSTINENT REVOLUTION!!" line, but I would have preferred a modus ponens to a chuckle. A two-fer would have been best of all ;-).
8.20.2009 8:00am
Joseph Slater (mail):
And for those principled and consistent libertarians living in a state with common law marriage who do not seek a marriage license but it is forced upon them by legislative fiat? VIOLENT ABSTINENT REVOLUTION!!

Brilliant on multiple levels. Well done!
8.20.2009 10:33am
Smallholder (mail) (www):
Tom Sawyer fears an authoritarian left that wishes to force churches to conduct marriages contrary to their dogma.

This is an example of how the congenitally dishonest can influence the badly misinformed. I have never heard anyone argue that Baptists preachers be forced to marry gays. I've never heard anyone argue that Catholics should be forced to marry divorced folks or that they should be required to officiate at wedding between mixed-faith couples who won't promise to raise the kids Catholic.

But that canard keeps coming up.

Arguing that the state shouldn't discriminate isn't the same as trying to forcibly (authoritarian leftistly?) alter religion.

The marketplace will do that.

Perhaps some of the fear of the Christianists (a distinct and identifiable subset of Christians) is that when other churches (like mine) conduct mixed race/gay marriages, the bigoted churchs' parishioners' children will see that all the promised doom and gloom didn't happen. And then they'll either switch churches or stop going to church altogether. Individual choices about not associating with bigotry, will in the long run harm the Christianists much more than a phantasmal authoritarian left.

People forget that the main opposition to abolition and civil rights came from Christian organizations. Recall that the prominent leadership of the White Citizens Council was coterminous with fundamentalist Christian leaders. Jerry Falwell got his start opposing letting Black kids go to school with white kids.

And then society changed and we now look back at that beknighted period and say: "How could people have believed that stuff?"

The homophobes aren't blind to that history. Perhaps that explains some of the vitriol. At some level, they know their argument isn't just with Dale Carpenter or Randy R. or your humble Smallholder. It's with their grandchildren.

(I exempt the egg and sperm guy. I have no idea where he's coming from.)

The libertarian view on SSM, contra some posters, doesn't reflect a hostility to Christianity; it represents hostility to Christianism. Some Libertarians may reject Jesus' Godhood. But, as Libertarians, they probably don't mind if you suffer your (in their view) delusions on your own time. They also don't care if you worship the Flying Spaghetti Monster (peace be upon his noodly appendage). Christian libertarians are probably similar to liberal Christians in their opposition to the Christianists. They oppose the Christianists' goals because, based on a different take on their faith, they think those goals are wrong and are possibly harmful to Christianity as a whole.

Take me for example.

I'm a Christian who supports gay marriage.

Because:

1) My main take from Jesus is love and I am repelled by the hateful vitriol of the Christianists.

2) I believe that my faith is correct and can survive without lies. When Christianist lie about the faiths of the founding fathers and about just about everything in the gay marriage debate, it makes Christians look bad.

3) The Christianists aren't likely to win any converts in the long run. How has the White Supremacist movement been doing lately? Do you think casting the church as the foe of equality is going to play well in the long run?

4) I suspect that Biblical morality that conflicts with rational morality is a reflection that MEN wrote the Bible and allowed their erroneous moral beliefs to creep in. One doesn't have to be a fundamentalist literalist to be a Christian. God gave us the ability to reason, and I have never heard a well-reasoned argument for discrimination against gays.

5) Even if I did agree with the bigots, I'd still be cautious about using the state to force my policy preferences on non-believers (whether I'm in the current majority or not). Someday I might not be in the majority and might not like how the new majority uses the precedent of religiously-motivated discrimination.

6) America is the most church-going nation in the world. And that's because of our wall of separation between Church and state. When the two intertwine, the Church is going to suffer.

I think any of those six items would also apply to a dyed in the wool Christian capital L Libertarian.
8.20.2009 12:05pm
einhverfr (mail) (www):
Smallholder:

John Moore and John Howard (the egg and sperm guy) both draw their views from Catholic teachings on sexual morality and the role of state in protecting what they see as a fundamental right to life (consistent in that it is anti-abortion and anti-capital punishment), the endorsement of children as a good in themselves (i.e. more children is almost always better), anti-contraception, and the like.

It would be wrong to call them Christianists however because although their political thought emerges from their church's teachings, those teachings are based on wide fields of philosophy wandering well outside the traditional theological domain. I may disagree with them, but at least can respect the totality of their viewpoint.
8.20.2009 12:23pm
Smallholder (mail) (www):
Einheverfr,

Thanks for the clarification - I wasn't talking about those guys specifically when I used the term Christianist - I'm referring to people whose policy preferences are based on their underlying interpretation of the Bible. Scratch almost any anti-gay bigot and you'll find a Christianist.

I am wholeheartedly sick of those folks co-opting the term "Christian." They don't speak for me.

As to the egg and sperm guy, if you can get past his grammatically-tortured construction and respect his apocalyptic fear of artificial conception, than you're a more patient man than I.
8.20.2009 12:30pm
Aultimer:

Clayton E. Cramer (mail) (www):
What a lot of people don't seem to understand is that one of the factors that tends to push many people to one side or the other of the conservative/libertarian divide is their view of Christianitylevel of self awareness. Those who are not Christianself-aware, or who have any substantial hostility towards Christianitytrouble imagining being a minority, tend to think of themselves as libertariansconservatives.


Fixed.
8.20.2009 1:35pm
Dilan Esper (mail) (www):
It would be wrong to call them Christianists however because although their political thought emerges from their church's teachings, those teachings are based on wide fields of philosophy wandering well outside the traditional theological domain. I may disagree with them, but at least can respect the totality of their viewpoint.

I am not a fan of the term "Christianist" for this reason. I use all sorts of terms, but not that one, because it is true that the intellectual foundations for the various groups that are labeled "Christianist" are quite different.

That said, there's actually a lot of bad faith behind Catholic argumentation on sex and gender issues. In other words, they advocate a bunch of rules which lead to absolutely absurd and abhorrent results (I am sorry, anyone who thinks that an African man with the HIV virus must have sex with his wife without a condom, and his wife has no right to divorce him if he insists on it, is an absolute moral cretin) but nonetheless lead to the very convenient conclusion that women and subordinate and gays should face legal discrimination and harassment and should attempt to turn themselves into straights if they want to have sex.

The point is, the vaunted "consistency" of Catholic moral teachings is really a very bad thing, not a good thing, because in order to be "consistent" and come to the conclusions they want to come to on gays and women, they end up having to advocate some absolutely awful things. Whereas those of us who are less "morally serious" generate much better moral systems, because we aren't busy chasing a bad result with awful reasoning.
8.20.2009 1:57pm
John Howard (eggandsperm.org) (mail) (www):
einhverfr: I share a lot of the concerns about GM babies. That opens up a ball of issues I don't want to consider here.

It all hinges on whether we should allow GM babies and same-sex conception or prohibit them both with an Egg and Sperm law. Libertarians and small government advocates should take a long term view and realize that sometimes allowing something can lead to limited freedom and more government intrusion in everyone's life.

Since you are obviously of the opinion that gay marriage is wrong because natural conception (outside of artificial insemination) is not a possibility,

Same-sex conception using modified gametes is wrong, and is a possibility. People should not be allowed to try it. No couples that are prohibited from procreating together (like siblings) should be allowed to marry, so that all marriages continue to protect the couple's conception rights. That's why gay marriage is wrong, because it equalizes away everyone's right to use their own gametes to procreate with their spouse.

then do you think that gay marriage as a change to our institution naturally follows from Supreme Court decisions (like Griswold) which state that couples have a Constitutional right to decide not to have kids?

Marriage doesn't force anyone to have kids, it approves of them doing things that might result in offspring, after committing and consenting to each other.

Would you support banning contraception?

Hmm, I suppose, but I don't really disagree with the reasoning of Griswald or Eisenstadt either.

Or prosecuting childless couples (who by choice are childless) for marriage fraud?

Wha? No, of course not. All marriage does is give them permission and support, it says we approve of them having children together. They don't have to, they don't even have to want to. If they don't want to, and want to make that clear that they aren't going to, they could get a Civil Union like a same-sex couple or siblings would have to get, which wouldn't protect their conception rights but they wouldn't care.

Or have we come so far past that point, that gay marriage is the least disruptive option?

Civil Unions that don't protect conception rights is the least disruptive option.
8.20.2009 3:03pm
Putting Two and Two...:

Because gay marriage expands the governments power over yet another aspect of society. To a libertarian, the principle of human freedom (from the power of the state) trumps and principle of equality. Accordingly, libertarians should oppose gay marriage.


The government already has power over marriage (thanks to heterosexuals). Do you think gay people who are forbidden to marry experience "freedom" from the power of the state?
8.20.2009 3:06pm
Danny (mail):
@ Smallholder

Thank you for your thoughtful post. Despite my non-religious perspective I always take pains to distinguish between Christianists (aka theocrats à la iranienne, people who want to mix religion and politics and impose their brand of dogma on the entire population against their will) and Christians, who are people who follow Christianity. As your post indicates, Christians already suffer from a tarnished image among many people because of the excesses of Christianism, which is why they don't deserve to be called by the same name.

I once had the opportunity to work with some colleagues who were evangelical Christians. Some of them were even missionaries abroad. I was very suspicious of them at first but we ended up hitting it off quite well because they were interesting, cultivated people who actually studied theology and koiné Greek etc., as well as travelling the world. What a coincidence that they were also not neocons or Christianists. They were not fanatical American nationalists who believed that every American life is worth 10 lives of people not blessed to be born in the land of strip malls and KFC. As missionaries they even felt strongly about getting their message out in the public sphere but in order to convince people, not to hijack the political machinery of a country to impose it on people who didn't agree with it and didn't want it (which is not conversion, anyway).

I suspect that some or many Christianists are not even Christian, in the sense that many are probably ignorant of the basic beliefs and facts of Christianity. Many could not name any of the ten commandments or the apostles, for example. Christianism can be interpreted as an extension of American authoritarian nationalism: uneducated, lower-class people who are afraid of the destabilizing effects of globalization latch onto an authoritarian model. Some of them are attracted to Christianism because of its authoritarian nature and not its religious nature. This sort of Christianist is light-years away from even the true theocrats.


It would be wrong to call them Christianists however because although their political thought emerges from their church's teachings,


That is the textbook definition of a Christianist, or one flavor of Christianism. I don't think you must be a Protestant to be a Christianist. If you want to translate your religious dogma into law, then you have no respect for democracy or pluralism. For a theocrat, moral authority comes from religious dogma. For a good citizen of a democracy, authority comes from the people. Even gay people have an obligation to bring their case to the people, or at a minimum to show that their proposals naturally follow from the constitutional framework which is highly popular and endorsed by the people. The people can perhaps be motivated by their philosophical or religious beliefs, but any law introduced has to benefit the entire population as part of the social pact of living in a democracy. Christians may be against stealing because of their religion, but Hindus and atheists will also strongly benefit from having stealing be illegal.
8.20.2009 4:21pm
einhverfr (mail) (www):
Danny:

I once had the opportunity to work with some colleagues who were evangelical Christians. Some of them were even missionaries abroad.

Funny how travel causes one to gain perspective....



That is the textbook definition of a Christianist, or one flavor of Christianism. I don't think you must be a Protestant to be a Christianist. If you want to translate your religious dogma into law, then you have no respect for democracy or pluralism.


However, the issue is that Catholic doctrine in these issues isn't something I can equate simply with "Christian tradition" or "Christian doctrine." For example, you see a lot of influence from Hellenistic philosophers quite apart from the religious side. In short Catholic doctrine is part religious, but part based on a wide-ranging philosophical inquiry which includes many pagan and non-Christian sources. Hence I have trouble equating it with Christanism (there are Catholic Christianists, btw, but I don't think John Moore or John Howard qualify because their views seem to derive more from the philosophical as opposed to theological elements of Catholic thought).

This seems like splitting hairs but really it is not. We can have intelligent discussions over philosophers such as Plato, Aristotle, Augustine, Boethius, Avecenna, Kant, etc. and that is all valid. However, when the issue comes down to an argument from authority (The Bible Says So!), that is where the line is crossed. The difference has to do with the scope of inquiry and the questions of why it should be used as a foundation for public policy.

The other element is that I am not sure that anyone's religious and political philosophies are entirely separate. I would think that if one has political ideas that go fundamentally against religious teaching that one would try to find another religious group, and that if one has to approach a new political issue, the approach one takes to religion will heavily inform the outcome.
8.20.2009 5:13pm
TracyW (mail):
But as a substantive policy matter, it's hard to see same-sex marriage as a genuinely libertarian cause. It enlarges the empire of marriage, and thus of state regulation. It's true that one voluntarily enters this system of regulation, but the government offers many special advantages and inducements to enter it.

I assume therefore that you are opposed to buying or creating property (land, manufactured goods, IP) as well. After all, buying or creating property enlarges the empire of property and thus of state regulation. It is true that one voluntarily enters this system of regulation, but the government offers many special advantages and inducements to enter it (for example, the government offers legal owners of land the inducement of the state's power in preventing tresspass, if you write a blog post or a book the government offers the inducement of copyright to allow you to prevent others from passing their work off as your own).

Really I don't get this idea that marriage makes us unfree. It strikes me as the government performing a service for me that I value, like the ability to write a will or to create a power of attorney. It falls into the category of the government providing services for me. You might disagree with some of the inducements and special advantages offered, eg tax rates, but to object to the whole notion of marriage strikes me as ridiculous. I want my husband to be my next-of-kin, to make decisions for me if I'm unconscious, and I'm happy to take advantage of the state's experience in handling marital breakups. Why shouldn't the government provide me with those advantages?
8.21.2009 10:14am

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