Yesterday, the Rhode Island State House of Representatives voted to legalize same sex marriage. There is some question as to whether the State Senate will also approve the bill, but there is clearly a trend building towards state by state approval of such unions here in the United States.
I’m strongly in favor of allowing gays to marry, and I’m very happy that the marriage equality movement is starting to win, but I’d like to point out a sad side note.
Although the growing victories of the same sex marriage movement are indeed a wonderful thing, they seem to be happening for entirely the wrong reasons. That is to say, this does not seem to be a triumph for the idea of human freedom. The reason the movement for gay marriage is winning in the US is primarily because more and more people think gays are decent people, and not because they’re willing to live and let live regardless.
The true test of whether you are in favor of freedom is this: if someone else is doing something you hate, but which does no violence to others, are you willing to leave them alone on principle?
If you are willing to leave others alone even if you dislike their behavior provided that behavior doesn’t physically harm third parties, then you support human freedom for its own sake. If you are only willing to leave others alone if you actively approve of their behavior, you are simply reinforcing your own tastes.
So, if you believe the reason we should permit gay people to marry is because you think gay people are decent, normal people, I can’t give you credit for supporting freedom in general (although I am glad that you’re with me on this one cause and will in no way refuse your help). If, however, you think that group marriages or Baal worship or something else you find creepy should be allowed simply because everyone involved is a consenting adult and it isn’t any of your business, then you are truly my ally.
Frequently, one hears anti-marriage equality spokespeople say things of the form “if you’ll let gays marry, why shouldn’t you allow group marriages”. (The exact other thing they pick for comparison varies but is not important.) When this happens, many of my friends say “oh, that’s a false equivalence, that politician is such an idiot for comparing those things”, but I think that is untrue, and they’re picking the wrong answer entirely.
The right answer is “if an adult woman and two adult men or any other combination want to get married, that isn’t my business either, whether I think it is a good idea or not”. As it happens, I’m not an advocate for polygamy – it doesn’t seem like a terrific idea to me – but if it is among actually consenting adults, it isn’t my business at all, regardless of whether I like it or not. The right answer is “if a group of people want to gather weekly to pray to the ancient Aztec gods, that isn’t something I should have any say about, no matter how stupid I think it might be, since it does not involve me.” As it happens, I’m an atheist and think all religions are a foolish waste of time (if not actively harmful to the participants), but it isn’t my business if people wish to engage in any peaceful activity, and prayer neither picks my pocket nor breaks my leg.
The politician making the comparison between gay marriage and polygamy is demonstrating that he doesn’t really believe in freedom – but so are the people who support gay marriage only because they happen to like gay people.
I’m willing to let neo-Nazis post antisemitic screeds not because I like neo-Nazis but because I believe freedom is more important than my distaste. If I only allow people to speak if I like what they have to say, I would be in favor of speech I like, not in favor of freedom of speech.
Similarly, it is not my place to tell a businessman who he should hire or fire, or where he should open his shop, or what days of the week he should keep it open, or from what countries he should buy his goods, or what he should make or sell. It does not matter if he is only selling copies of “Mein Kampf” typeset in comic sans and that he only will employ racist blond white men. I might not like what he is selling or who he employs, but it isn’t my business. If he wants to pay the racist white men he hires $2 an hour and they’re okay with that, it isn’t my business. If he legitimately buys a store 500 feet from a school, it isn’t my business if that’s where he sells his copies of Mein Kampf.
It is easy to be in favor of the right of others to do things you like them doing, of course. It is, in fact, a challenge to find anyone who wants to make activities they favor illegal. The real question is whether one accepts the right of others to do things that one does not like, on the principle that freedom is in itself a value worth supporting.
I agree with your central thesis that freedom lovers must demand freedom for things/people etc. they disapprove of and even despise. But your example of gay marriage is poorly chosen, for you are conflating two different issues. There is the freedom to enjoy one’s sexuality as it is, without fear of persecution. Most libertarians would accept that freedom for same sex couples.
Gay marriage is an entirely different issue, for if marriage has a fundamental meaning at all, it is a community sanctioned approval of a relationship. A community should be free to approve relationships as it wishes, and not have a list forced upon it by government. Allowing gay marriage merely promotes one group’s freedoms above another’s.
See Sam Bowman’s excellent recent post http://centrallobby.politicshome.com/latestnews/article-detail/newsarticle/get-the-government-out-of-the-marriage-business/
Perry Metzger – there is, as far as I know, no regulation forbidding two (or more) men holding a private ceremony – and one man calling the other his wife.
Their friends may call them husband and wife if they choose to do so. I certainly would not stop them doing so.
What “legalizing Gay Marriage” is actually about is forceing other people to “recognise” such unions. For example, forceing insurance companies to offer contacts to people they do not wish to offer to them to. And to offer lots of lovely “anti discrimination” law suites for lawyers.
You think this is about freedom – and it is actually about force and fear.
And, of course, brainwashing (or conditioning – if you prefer a nicer term).
There are plenty of recordings of television types (and so on)saying how they drop “Gay Marriage” stuff into their shows.
American entertainment television has been since the FCC changes of regulation in the early 1960s a small cartel – easy for the left to take over and push any message they like. And this has been one of them.
Why do people who have mocked marriage for so many decades now want Gay Marriage?
Have they been converted to a pro marriage point of view?
That does not seem very likely. Could it not be possible that they have other objectives?
But I am just going to be denounced as a bigot (even though I have nothing against such private ceremonies – as long as they do not frighten the horses) so I will not bother going on.
The West is doomed (and this is just a very small part of why it is doomed) and it is no good crying over split milk.
I regard homosexuality as something unpleasant, immoral and none of my business.
As to the whole gay marriage thing, it seems to me we’re asking the wrong questions.
The real question is why does anyone either want or feel that they should require the state’s permission to marry whoever they wish?
I must take issue with David C’s characterization of the issue. If marriage (gay or otherwise) is merely “community sactioned approval of a relationship”, that purported ‘sanction’ is simply inappropriate. A ‘community’ is merely a collection of individuals, and if one individual has no moral authority to ‘sanction’ a relationship (and he does not) then a fortiori the ‘community’ does not either. Whether the community approves or not is irrelevant. MYOB.
However, Paul’s point is well taken. ‘Marriage’ isn’t merely community sanction, it is ‘government’ sanction, with all that implies. It is forcing all taxpayers to fund (via mandated provision of spousal benefits) an activity some find immoral. Likewise, it is forcing all policyholders to fund (via higher premiums) insurance benefits to same-sex ‘spouses’ when some would prefer not to subsidize such activity. ‘Marriage’ as presently constituted has legal and contractual elements which simply don’t fit into a libertarian philosophy.
Perry’s celebration of freedom of association (not telling the businessman who he should hire or serve, not denying the neo-Nazi the right to propound his noxious theories) are laudable, and I agree wholeheartedly. But he fails to recognize that, with the expansion of ‘marriage’ beyond its original significance as a purely religions concept into an area of governmental control, forcing ‘gay marriage’ onto those who oppose the concept is in violation of that very principle. No one here (so far, anyway) disagrees that consenting adults should be free to express their sexual identities however they see fit. But the answer is not to ‘legalize’ same-sex marriage, it is to get the government out of the marriage-legitimizing business altogether.
I’m sorry, but this whole discussion elides two distinct issues. Marriage, which is a religious sacrament, and state treatment of sexual partnerships.
If two, three, fifteen, people of whatever sex wish to marry according to whatever rites they choose, and then change the manner in which they wish to refer to themselves, that’s fine by me. None of my business in fact.
If they then seek state benefits, such as differential treatment with pensions or unemployment benefits for dependents, as a result of their little ceremony then it is very very much my business.
I, personally, am happy that one on one partnerships, regardless of the sex of the two participants, be recognised under such laws, but I am damned if I will accept other arrangements. State recognition of polyamory arrangements will lead to significant injustices, either to members of that group, to taxpayers as a whole, or to whoever is involved whatever other financial groups involved – insurance companies, mutual funds, whatever.
I’m intrigued by the fact that what I assumed would be the least controversial part of my posting has created a firestorm. The point of the piece was to discuss the nature of freedom, not marriage equality. Perhaps it is my perspective as an American, as essentially all U.S. libertarians I interact with are clearly in favor of equal treatment for all those seeking marriages. (I know of some exceptions, of course, though they are increasingly unusual.)
However, as the topic has been (surprisingly) raised, and appears to be getting more argument than my central point, I will address it anyway.
I would agree with those who claim that ideally no marriage, gay or straight, should be a matter for state sanction, regulation or legal interference. (Indeed, as an anarchocapitalist, I oppose having the state exist in the first place.)
As a libertarian, I also oppose all government “benefits” of any sort, regardless of age, marital status, weight, preferred style of poetry, etc.
However, as a practical matter, in areas from being able to make medical decisions in emergencies for your spouse when they are in the hospital (or even being able to visit them!) to being able to inherit property, to jointly raise children, and dozens of others, our legal systems is permeated by the concept of marriage. It is difficult for a couple to live a “normal” life without some legal recognition even if they would prefer not to seek state recognition, and even if they do not themselves recognize the legitimacy of the state.
Both anecdotal and statistical evidence indicates that unmarried couples frequently face considerable difficulties as a result of their lack of legal recognition – everything from attempts by disgruntled relatives to dispute the legitimate inheritance of a pension to refusal of hospital officials to release the body of a dead partner for burial. People actually are frequently denied the right to see a dying partner or kicked out of their homes for lack of such recognition.
It is also difficult for other, artificial designations of what is in practice a marriage to work – marriages are recognized inter-jurisdictionally, but various domestic partnership schemes and private legal contracts are frequently ignored beyond the borders of the region that created them (and indeed, all too often even within them). One should not have to give up all legal protections if one moves or travels on vacation.
Most importantly of all, it is not the place of the state to dictate that certain relationships get one kind of treatment and other relationships another. Just as the only justification someone needs for owning a gun or painting their kitchen table mauve should be “I wanted to”, so it is not the right of third parties to question why someone should wish to have their relationship legally recognized, regardless of practicality or any other motivation. It is this that I intended to be the primary subject of my posting.
I fully agree with those who say that no church should be forced to perform a ceremony for people it does not like, regardless of why it doesn’t like them — but that should go without saying. I fully agree that freedom of association implies that no one should be forced to have dealings with people they dislike in any other context either — but that should also go without saying.
The question here is merely whether it is legitimate for the law to provide certain people with a legal package called “marriage” and to deny it to others (and make no mistake, the practically important part of “marriage” is indeed things like automatic hospital visitation and decision rights). I am afraid I see no legitimate basis for such a denial other than personal disgust, and as I’ve said above, if you refuse to grant others rights because of your personal disgust, you do not believe in freedom.
Thank You Mr. Marks & Laird.
Could not agree more with wither / both of you.
This entire ‘effort’ is to get legal recognition of such unions and in doing so, the monetary benefits ( insurance, taxation, survivor rights / benefits etc. )of said relationship !!
Nothing more.
I have yet to get an answer as to why government is involved with marriages and/or civil unions in the first place. Why should I be forced to ask some beaureucrat at the county courthouse for a licence to spend my life with someone of any sex, race, religion, orientation, and so on? If my church doesn’t want to marry me, that’s fine, but I shouldn’t even need to ask permission from the state, much less pay for a licence.
That said, I can see where state interference comes in. Even if we treat a marriage as a simple contract, what happens when one party breaks the contract? Or when children are concerned? There will always be laws concerning child support, simply because there are way too many deadbeat parents who would pay nothing towards their crotchfruit if the courts had no means to force the issue. There will always be laws concerning child custody, division of assets in a divorce, distribution of property after a death, probate, and so on. Even in a perfect world with no government to speak of there would still be some law concerning what to do with assets when a contract fails and there are no provisions in said contract to resolve a dispute.
(Yes, I am well aware of the horror stories and the injustices concerning the family court system, especially when it comes to spousal support, the non-custodial parent being financially raped, and the whole aspect of the state skimming off the top to pay for the program.)
But there are some real considerations to think about when it comes to just letting the flood gates open concerning marriage. Suppose we have a polygamy marriage system. The Husband is in a car wreck and is on a ventilator. Wife A wants to take him off and let him die. Wife B wants to keep him on indefinately. Wife C doesn’t care what they do. And before anyone knows it Wife D shows up out of the blue with a claim that she was married to The Husband just last week. Who gets to make the decision about what to do?
The Husband finally dies. How do his assets get divided up? Normally, it all goes to the spouse, but how does it work in this case? Does it all get divied up equally? Does it get distributed based on seniority or time married? How do we prove who really was and was not married to The Husband if there is no legal record of a marriage because there is no legal process in the first place? What about the children and other obligations? Does Wife B have any legal obligation concerning Wife C’s minor children? What about claimants who show up after the fact; how does the estate deal with them?
Then there is the issue of the democratic process. Do the people in a community have a right to collectively decide what is or is not a marriage to them? If the answer is no, how does that expand to cover other situations? Would a community be able to decide what is a crime? A business? A legal contract? Property ownership? Public services? Where are the limits in what the community can collectively decide on?
I’m not saying there should be any state involvement in marriage in the first place, but if we allow the legal definition to expand to pretty much anything imaginable (provided everyone is a concenting and human adult), there are some things to be considered.
OOPS
EITHER NOT wither !!
My apologies.
Agreed. Just not on my property 😀
1) The only interest we have (through a State) is the peaceful distribution of property acquired by a partnership. Any “benefit” of subsidizing partnerships is wrong regardless of the sex of the partners.
2) The gay marriage issue, as it stands in the hands of the left, is simply a vector for spreading socialism.
3) Ergo, once the “benefits” of marriage are scrubbed from the State, the issue loses its socialistic bent and reduces itself to the boiler plate default of partnership property in the very likely event no clearer contract is in place.
It is my business because they want me to pay for it.
As an anarcho-libertarian I began with an open mind on the issue, but with the presumption that any change needs to be justified (otherwise, responding only to positive in-puts, the system spins out of control) and i have never heard a good explanation of why an institution that has obtained for as long as we have reliable record should be changed.
It is not a matter of equal rights, for no heterosexual has the right to same-sex marriage.
The various particular complaints about property, inheritance and so forth can most of these be resolved by private contract or, as in the case of hospital visitation, by low level regulatory provision and do not require that we uproot thousands of years of implicit cultural knowledge.
I m impressed that in all societies of which we have any sort of reliable knowledge, marriage and family has been between a man and a woman, even in societies where the state was weak to non-existant, or in societies where polygamy was explicitly allowed. This is Hayekian knowledge encoded in our institutions and we of all people ought be wary of the fatal conceit that we know better.
Perry:
Bold type mine. What it actually says is:
I absolutely agree with you that the existing system is unfair. However, the root of its unfairness lies squarely with government interference. Ergo, to make the system fair one has to get rid of said interference, not to demand the distribution of unfairness among all. If the gay-rights movement was truly concerned with hospital visitations, inheritance, child custody etc., the simplest and most obvious demand on their part should have been upholding of private contracts of all kinds. If they did that, I have no doubt they would see a surge in public support, including among many (albeit probably not all) conservatives. Not going to happen, of course, because the gay-rights movement is dominated by the Left.
BTW, ‘the least controversial part’? Really?:-) But yes, I think it is a very good back-to-basics post.
I’ve been going back and forth on this for awhile now. Here’s my current thinking:
Marriage is not about the right of people to have sex with, or even live with, the partner of their choice. It’s not about the married people at all.
It is about the bearing and raising of children in order to carry forward the society into which they were born.
That word “bearing” is key. Gay marriages are not sufficient for this, because gay partners cannot procreate; even if they adopt, they will not, on average, have the same interest in raising someone else’s children instead of their own. (Yes, I know you know couples, same sex and otherwise, who have adopted and raised children, and done a wonderful job of it. The question isn’t what’s possible, it’s what’s likely–and what we want to encourage.)
A consequence of this view is that society (instantiated in the state) has an interest in smoothing the way for parents to raise their biological children together.
Hospital visits are a good example of a policy that ought rightly to be out of bounds. These regulations have nothing to do with raising children; instead, they are a hamfisted way of enforcing the presumed privacy of the patient. The patient should be able to control visitors, within the bounds of good medical practice. (No hordes of unruly children messing with the monitors and infusion machines in the ICU, for instance.)
Raising children well is perhaps the most difficult task most humans ever attempt. Not least among the difficulties is putting up with an adult human of the opposite sex who doesn’t understand the critical importance of, say, bass boats, or properly hung curtains. Society should recognize that, and institute policies that encourage men and women to become partners specifically to raise the children of their loins.
It’s not a matter of limiting or punishing those of us who do not, or even cannot, procreate. It’s about rewarding those who do.
In the long run, my guess is that this is a silly argument. The number of gay and lesbian couples trying to raise children will be relatively small, down in the noise. A robust society can tolerate the cost of granting those couples the privileges of marriage.
But for now, I see the gay marriage movement is not itself for the benefit of the couples involved; that’s just the sugar coating. The real force behind that movement is to destroy the institution of marriage, and by extension the institution of heterosexual parenting. Statists believe that only the state should control procreation and the raising of new subjects.
I don’t think there was originally a concentrated effort to outright destroy marriage as much as it was an unintended consequence of women’s lib. Once women realized they did not have to be married or a baby factory, so many of them stepped out to find themselves or some such thing. Divorce laws were rewritten to make divorce as easy as filling out a form and getting a judge to give you half his stuff. Marriage simply ceased to be a foundational institution once it became disposable.
That’s not to say that there were agenda driven folks who didn’t hop on the bandwagon to push their view on an already weakened institution, but I don’t think the original assault on marriage had anything to do with homosexuals, plural marriages, farm animals, furries, or what have you.
Is there any reason my post was retained?
luckylucky, there’s always a reason; it’s just beyond your comprehension. Samizdata.net editors are God and God moves in mysterious ways.
lucklucky: hmmmm… I do not see any pending comments from you and I checked the spam trap too and there is nothing there.
@ Mr. Metzger:
> Most importantly of all, it is not the place of the state to dictate that certain relationships get one kind of
> treatment and other relationships another.
* Marriage is a religious sacrament[1] that the state (in the US) may not regulate. Homosexuals have been able to get “handfastings” from the Wiccians and whatever the universalist wimps call their ceremony (probably afternoon tea).
* Marriage is a social institution that the state has no control over. You may call yourself married or whatever and society will act as it will. In fact there is very little control over this at the legal level. Those who control the culture control this.
* Marriage legal framework to encapsulation social expectations on things like property laws and inheritance etc. that are an outgrowth of the social institution. This is the only lever the state, and therefore the electorate have.
Presuming you’re going to have a state, when one is talking about a *legal* framework THAT IS EXACTLY THE PURPOSE of the state. To establish and regulate that framework.
The one problem with marriage in general is that it is not just a legal framework that protects the two primaries. It was evolved specifically to protect the *progeny*. One could not marry, have kids, amass a significant pile of wealth then yank that support mechanism out from under them.
And yes, homosexuals are routinely showing that children *are* a part of their relationships. There are a couple of stories of homosexual couples acting like right fucking prats during the dissolution of their relationship where the (biological) non-mother (or non-father) disclaims any responsibility or ability to assist with the financial support of the wee one. How typical of the modern leftist.
Me, I’m for ditching no fault divorce. You want access to that framework, be prepared to live with it.
@DJMoore:
” The patient should be able to control visitors, within the bounds of good medical practice.”
Uh. Really? You need to spend some time in hospitals. The entire *reason* people are there is because they are, well, FUCKED UP. If they had the energy and wherewithal to “control visitors” they would be about to LEAVE THE HOSPITAL.
This (part) of the problem comes up when a patient is unable to be queried about his or her desires–mostly end of life issues. Parents/family who don’t *like* the homosexual relationship will seek, usually legally, to bar the partner from their son or daughters life. Also it is often our partners that we turn to with our wishes for our final disposition etc.. Case law is that a homosexual with a piece of paper is trumped by grieving or upset parents. I am with several commenters that the right thing to do is to honor those pieces of paper, but we are not a rational species.
[1] I don’t really care who puts tab A into whichever available slot, and if you want to call yourself married you’d best act like it. But I think the real fun is going to be when a Church, probably Catholic or Baptist, is sued because the priest/pastor will not perform a same sex marriage. My suspicion is this has been the goal of certain social agitators all along.
I agree. Since everyone is born to their unchangeable and fixed sexuality, I have long called for the total decriminalization of sexual conduct. No one should be criminally punished for their innate desires and actions taken to fulfill their desires. If you really feel that you have been harmed by someone’s homosexual, pedophile, bestial, or non-consensual sexual orientation, there exist civil courts wherein you can ask for compensation.
Okay, thanks for checking Perry.
Laird 🙂
This post manifests some typical Liberal (or more correctly atheist) axioms. Which is fine, but the problem is that most of your type of people are unable or unwilling to see things from any other point of view. (“After all, since I am right and you are wrong, there is nothing to be gained by seeing things from the ‘wrong’ point of view”).
Nevertheless, perhaps you will give it a go:
Firstly, the reason governments involve themselves in “marriage” and what goes on between 2 adults in private is because that is the kind of government that has universally been created ever since governments were invented. Because that is what people have always wanted and expected, however “wrong” that is. And that is what the majority still want, despite decades of pressure in the media and public schooling to the opposite. I will call it a genetic trait, and efforts to change it are doomed to failure.
Secondly, the axiom that “freedom” is maximized when one person does not, or has no way by which he could, affect the private behavior of another person: I do not agree that that is axiomatic.
Some people feel that governments should prevent people from possessing the leaves of certain plants, even in private.
Others feel that people should be prevented from recommending certain investments to others without first going through a long course and getting some sort of certificate first.
By genetic chance, most humans have belief in religion, and the belief often requires them to try and convince others that, for their own good, they must arbitrarily do or not do certain things.
It would be a very interesting society indeed where no group of people could make rules that affect any single other person! This is yet another Liberal Utopian ideal, which is in my view, genetically inferior to the religion gene, and must needs disappear from the gene pool, while the religious and their non-free tendencies will vastly out-breed the utopians till the end of time.
That is extremely debatable on pretty much every level.
No, freedom is mazimised when one person does not, or has no way by which he could, affect the private behaviour of another person at gunpoint for anything but the most limited enforcement of negative rights.
By genetic chance? So as most people in Britain as not religious by any meaningful definition, are you of the view this reflects some genetic facet people in the Sceptred Isles? Might I suggest that actually it has nothing whatsoever to do with expressed genes and is in fact an entirely social phenomenon derived from the fact our post-enlightenment civilisation sprung from earlier pre-scientific attempts to explain the nature of reality.
Yet strangely I have yet to meet a libertarian (which is what I assume you mean by ‘Liberal’ as you are posting this comment here, unless of course you mean it in the weird American nonsensical sense, i.e. an illiberal socialist… in which case you would be a very confused about your target audience) who has no desire to see rules imposed on other people. For example I would happily see most of the UK’s professional political class hanged en-mass from London’s lampposts, so do not confuse the sorts of people who hang out there as utopian pacifists.
Indeed most libertarians would be very happy to see the non-aggression principle imposed at gun point (i.e. by law) on, well, absolutely everyone. Likewise most folk of our ilk tend to enthusiastically support the idea of violence backed laws underpinning several property rights.
It is also a ‘straw man argument’ as not many people in this parish thinks the things you think they do…
… however there is no such thing as a ‘religious gene’. I assume you think people are genetically pre-programmed automata.
… but as people are manifestly *not* genetically pre-programmed automata, feel free to drop your draws and breed away, Peter, as you are just making more people for folks like me be bring over to my way of thinking.
I was being a little facetious, or playing devil’s advocate here.
I would identify myself as Libertarian, but found your post a bit preaching-to-the-choir due to it’s assumptions. If you wish to convince others, I think you need to step back and stop sounding like a classic US-style “Liberal”. Your post title uses the word “Right” in the moral sense, and this is the classic us-liberal buttress to every position they claim to hold, and it prevents any discussion, for they start off being “Right” … what else is left?
For example I do not know if the is a religious gene or not. I was just trying to provoke a denial of such a possibility. You took the bait, and your confident absolute statement that there isn’t displays hubris, a classic us-liberal trait. There are genes that appear to affect different parts of speech, as Steve Pinker so entertainingly writes, so why must there not be one that affects how we wish others to behave? Is there a scientific experiment you are aware of that proves your position? If not, and there might actually be such a gene, what makes it “wrong”?
I do not think there is such a separate thing as “entirely social phenomenon” as you write – that is just another name for human nature, just aggregating the desires of multiple humans.
I am rambling a bit here, but I think I am really asking why is “the most limited enforcement of negative rights” superior/morally-more-Right to one that is less limited?
It seems to me that marriage has five distinct aspects that must be distinguished from each other to make sense of the debate.
1. A social arrangement that is in some sense sanctioned by a subset of society (i.e., a church or other community).
2. An agreement between two individuals (a contract).
3. A standardized contract recognized in common law (cf. employment contract).
4. A standardized contract recognized in statutory law (also cf. employment contract).
5. A set of policies in a wide range of institutions that have developed over time, mainly to satisfy the common desires of the most historically common kinds of marriage arrangements (“next of kin” policies, etc.).
Item 1 is not relevant to the issue of statutory recognition of same-sex marriage.
Item 2 is nobody’s business but the parties involved, but the wider issue of legal recognition of private contracts in general is related to the issue of statutory recognition of same-sex marriage.
Item 3 is unavoidable, and it’s important with respect to statutory recognition of same-sex marriage because it applies only to monogamous heterosexual marriage (for all practical purposes), and most likely couldn’t be got rid of even if it were deemed wise to do so. In other words, we’re stuck with marriage having special legal status so long as we continue to recognize common law, regardless of what statutes governments do or don’t pass.
Item 4 is the core issue: ought statutory law regarding marriage be expanded to include same-sex marriage?
Item 5 is relevant to Item 4 because many of the institutions in question are government-sanctioned or government-financed, and the principle of equality before the law demands that such policies not favour one person over another person because of personal choices that don’t materially affect third parties (e.g., marrying someone of the same sex as opposed to someone of the opposite sex).
The upshot of all this seems pretty clear, to me. The principle of equality before the law tells us that the favoured status of opposite-sex marriage in common law represents an injustice in that people who choose to enter into such a contract benefit from government-sanctioned and tax-financed policies that people who enter into other, equally valid, contracts do not. There are only three ways to right that injustice.
A. Get rid of the policies that favour marriage of any kind.
B. Wait for common law to recognize same-sex marriage in the same way it recognizes opposite-sex marriage, which it surely will, eventually. (Barring societal changes that put homosexuality back in the closet or statutory prohibition of same-sex relationships.) In the meantime, turn a blind eye to the injustice. (What the heck, it’s not as though it’s the only injustice!)
C. Right the injustice through statutory law that grants same-sex marriage equal legal status to opposite-sex marriage.
One of those things is going to happen. (Hint, it will not be A.) Those who think they can avoid both B and C are, I suspect, denying reality.
(Perry M: I admire your attempt to steer the dialogue back to the original issue, but these things take on a life of their own.)
Tedd:
So we have seen.
Thank you, by the way, for the excellent summary of the issue of same sex marriage in your comment — it is almost completely identical to my own.
As the topic has sadly become same sex marriage and not liberty in general, I thought I would make another comment.
Some above claim that marriage exists only for the care of children. Although I have not found such a statement in the marriage laws of New York State, where I reside, or in those of any other jurisdiction for that matter, I will take the learned commenters at their word.
As it happens, I know a great many heterosexual couples who seem to have been allowed to marry anyway even though both are far too old to have children. It appears, in fact, that nothing in our legal system prevents a pair of octogenarians from marrying provided they are of opposite sex, and many have in fact done so. I presume that those claiming that marriage rights should only be available to the fertile will now lobby to withdraw the legality of such unions.
Similarly, I know a great many couples who, in spite of having the correct equipment and in good working order, have decided never to have children. Some have gone so far as to undergo surgical sterilization procedures. Perhaps these should be the subject of fraud prosecutions under the doctrine that they entered in to their union in violation of the underlying purpose of marriages.
Similarly, I know a number of couples who have survived past their childrens’ adulthood. Although the law probably did not until recently have to deal with such an anomalously long lifespan, I presume that such marriages ought to become invalid at that point, something I had not been previously informed of but would be interested in hearing more about.
Similarly, DJMoore opined that:
Oddly, most of the married same sex couples I am friends with have children — three out of five couples. From the statistics I’ve seen, “down in the noise” appears in the United States at least appears to be “at least one quarter” of all same sex couples according to the US census. (The number is probably skewed down because the census cannot currently distinguish married and unmarried same sex couples, and until recently it was fairly hard for same sex couples to adopt, so older couples tend not to have children.) Presumably these couples should rightfully be granted the privilege of marriage, while childless heterosexuals (as we have discussed previously) should not.
Perry Metzger: “From the statistics I’ve seen, “down in the noise” appears in the United States at least appears to be “at least one quarter” of all same sex couples ”
Pardon, I meant out of the total population of parents, not the proportion of gay parents.
And no, I don’t think the laws typically call out the raising of children as the purpose of marriage, but I do believe that “be fruitful and multiply”, is the legitimate interest that societies have in the sexual affairs of consenting adults, in so far as there is any such interest.
And if you argued that the world was flat I would have ‘taken the bait’ on that too. The notion religion is ‘genetic’ is so preposterous I find it hard to believe you really believe that.
Indeed if you are a Christian, the very notion of Christian morality is based on free will. If we are just God’s pre-programmed meat puppets, there could be no good or evil as we do not actually have ‘choice’ over our actions.
Perry Metzger, it seems to me that your last comment contains a bit of a strawman argument. The fact that many couples marry while clearly not intending to have children (for whatever reason) does not necessarily refute the claim that originally the institution of marriage grew out of the need to establish the ownership of children (‘ownership’ mostly in the sense of responsibility). Over time and through natural developments institutions often assume functions that were not necessarily part of their original purposes, and some of these functions may in fact become optional purposes.
None of which is to say that we know for a fact that marriage was originally established solely with children in mind, only that your argument does not refute that hypothesis.
Alisa:
I was not discussing the “origin” of marriage at all. The question before us is not some historical dispute about the origins of marriage, it is whether legal recognition of same sex marriage is consistent with libertarian ideals.
In that context, the origin of marriage is irrelevant, in the same way that one need not consider that the fourth day of the work week is named after a particular Norse god when deciding whether to schedule a meeting on that day of the week. The origins of things might in many instances be interesting, but the fact that the Sony Corporation started as a rice cooker manufacturer is of no interest to me in deciding whether I should buy a television from them.
I very much doubt, in fact, that the institution originated “out of the need to establish the ownership of children”, but that makes no difference anyway so there is no point in arguing about it. What matters is the truth or falsehood of the claim that the legal package called “marriage” currently exists solely to provide for children, and that this is good reason to deny same sex partners access to marriage. I believe I have amply shown that this claim is absurd.
How the institution may have originated is of interest to historians and scholars, but it is not a guide to what we should do now. Clearly we allow octogenarians, sterile people, etc. to marry, and clearly a huge fraction of same sex couples raise children. The relevance of any such claimed “origin” of marriage is thus uninteresting in settling the actual question before us.
I have a very binary view of the issue. First, any group of people may voluntarily enter into a marriage relationship of any form the wish. It is none of my business.
Marriage, as a government sanctioned institution can only have two possible reactions. Either they remove *ALL* benefits and laws giving married individuals special status, or they give the exact same benefits to all who have entered into such relationships. I cannot accept any other approach. There must be equality under the law. Everyone gets it or no one gets it. Period.
Perry: fair enough.
Dale, I’m going to try and clarify my own position to myself by presenting the following extreme scenario: what if some people demanded to be married to their pets? (And no, I am not comparing homosexuals to animals, although I imagine someone somewhere will insist on reading that into my comment – oh well). I would have absolutely no problem with that, as it would be their own business. Now what if these people demanded that government recognized their union with their pets as marriage, and extended to them the same kind of preferential treatment it extends to regular married couples? What I am trying to say is that I am all for equality under the law when it comes to protecting the negative rights of citizens – which is the only legitimate function of law anyway. As someone who is opposed to positive rights to begin with, I see no benefit in broadening the extension of such rights. The flip side of rights – burdens – is something with which we currently are grappling here in Israel, where the secular majority are demanding that the Ultra Orthodox minority perform the compulsory military service “just like everyone else”, because they are benefiting from the same positive rights (child benefits etc) as everyone else. I see these two issues as flip sides of the same coin, and I think that both are objectionable to anyone who wants to minimize the role government plays in the lives of citizens.