Gays, marriage, and rights: A Libertarian perspective

For those on both sides of the gay marriage issue, the debate must be reframed Photo: AP

MADISON, Wisc., March 26, 2013 ― Facebook turned red today as the U.S. Supreme Court heard its first of two consecutive days of oral arguments concerning gay marriage. Today, the high court considered the legality California’s Proposition 8, a statewide ban on gay marriage. Tomorrow, the federal Defense of Marriage Act (DOMA) will be scrutinized.

Ultimately, rulings on these cases are expected to have a sweeping effect on the role government takes in marriage. Should government ‒ at any level ‒ prevent homosexuals from marrying? No, but the issue isn’t quite that simple. Not only does the state prevent homosexuals from marrying, it permits heterosexuals to do so. Anyone who wishes to get married (or divorced) must first seek approval from the government. Think about that for a moment; it’s appalling.

Libertarian author Wendy McElroy elaborates on the nature of the relationship between couples and government. “The state is already too intimate a partner in everyday life. Modern marriage contracts are not agreements between a husband and wife so much as they are three-sided arrangements between a husband, a wife and the state. That is, the state legally defines what a marriage is and how it can be dissolved. Without government approval ‒ in the form of a divorce decree from the court ‒ a marriage cannot be terminated.”

Why is this so? Part of the government’s interest in controlling marriage is historical, as Roderick Long explains: “The term ‘marriage’ has traditionally been applied exclusively to relationships in which the husband held legal authority over the wife – relationships in which the wife was not only subordinated to her husband but actually absorbed into his legal identity.” Of course, fiscal considerations come into play as well. The most obvious example is a tax break. Here’s an idea: eliminate it. (And while we’re on the topic, let’s eliminate all income taxes—but that’s another story.)

While running for president in 2012, Ron Paul—a Republican, mind you—unequivocally stated his views on state involvement in marriage. “I would like the state to stay out of marriage,” Paul said. “A voluntary association shouldn’t be interfered with by the state, so I’d just as soon that the state not issue licenses or define marriage.” Part of the remedy for the marriage debacle, as Paul suggests, would be the abolishment of marriage licenses, which have historically been used not only against gay couples, but also as instruments of racism and religious intolerance, as well. As recently as 2009, a Justice of the Peace refused to issue a marriage license to an interracial couple in Louisiana.

If the state cannot grant permission via license, then it cannot enforce its definition of marriage. If it cannot enforce its definition, its definition is meaningless. Religious fanatics and gay pride activists would continue to argue over the legitimacy of same-sex marriage, but their disagreements would not eat away at the fabric of society. The gay marriage argument would be reduced to a peripheral argument over an issue with no policy implications: all-important for those who care, and completely inconsequential to those who don’t.

SEE RELATED: Gay rights and Supreme Court: Justice Roberts can make history

Imagine a world in which the government were truly and entirely out of the marriage game. What would it be like? Most churches would continue to operate the same way they do now. Both now and in such a future, if a man and a woman are married in a Catholic church, they are accepted as married by the Catholic Church and by anyone else who recognizes Catholic marriages (for example, Lutherans and insurance companies). But nobody would be forced to recognize the marriage.

Now, suppose that some private institution came along ‒ perhaps a church, perhaps not ‒ and decided to marry two men. Anyone would be free to recognize or reject this marriage. Let’s assume that the Catholic Church would not. Further, assume two insurance companies ‒ one that recognizes same-sex marriages and one that does not. A gay couple would probably do business with former. Instead of the state mandating that all insurance companies behave the same way, the free market would guide them to adjust their practices or else lose potential customers.

Everyone would be freer. But there is a broader issue that the gay marriage debate sheds light upon. Many speak of “gay rights.” Those individuals would do well to reassess their choice of words. By framing the discussion in terms of “gay rights,” the idea that rights belong to groups is implied. The same thing happens with “women’s rights,” “workers’ rights,” and, in a slightly different way, “states’ rights.”

Contrary to popular belief, rights are inextricably bound to individuals and only to individuals. A “right” is only a useful construct insofar as it pertains to the individual. By granting “gay rights,” a dichotomy is necessarily set up: There must then be “gay rights” and “straight rights.” One can feel the inexorable mounting of tensions already. There are only individual rights, or “human rights,” if you prefer. The debate over gay marriage completely changes once this is realized. Either every person has a right to voluntarily associate with any other person in a way they decide to call “marriage,” or nobody has that right.

SEE RELATED: Why the Supreme Court will kill DOMA and Prop 8

When framed this way, it is immediately clear that the former is the only suitable proposal for a free society. From there, the anger of both homosexuals and heterosexuals is directed exactly where it should be aimed ‒ not at each other, but at the state.

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Joseph S. Diedrich

Joseph S. Diedrich has been a columnist at The Washington Times Communities since early 2013. He covers non-electoral politics from a libertarian perspective. His work has also been featured at the MacIver InstituteThe College Fix, and elsewhere.

Joseph is also a classically-trained composer and somewhat of a gastronomy enthusiast. Find him on Facebook, LinkedInGoogle+, and Twitter @JSDiedrich.


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