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.

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.

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.

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.

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.

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.

I admire your attempt to steer the dialogue back to the original issue, but these things take on a life of their own.

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:

The number of gay and lesbian couples trying to raise children will be relatively small, down in the noise.

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.

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.)

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?

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.

That is extremely debatable on pretty much every level.

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.

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, 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.

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.

It would be a very interesting society indeed where no group of people could make rules that affect any single other person!

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.

This is yet another Liberal Utopian ideal

It is also a ‘straw man argument’ as not many people in this parish thinks the things you think they do…

…which is in my view, genetically inferior to the religion gene

… however there is no such thing as a ‘religious gene’. I assume you think people are genetically pre-programmed automata.

…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.

… 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.

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.