This Just In: Gay Marriage Ban Could Impair Contract Rights

Jacob Sullum | April 12, 2006

Virginia Gov. Timothy Kaine is against a proposed constitutional amendment banning gay marriage because he thinks it might adversely affect unmarried heterosexual couples. Virginia law already bans gay marriage, but supporters of the amendment, which voters will consider in November, say it's necessary to prevent same-sex couples who get hitched elsewhere from sneaking across the border and demanding equal treatment. Kaine, who repeats the ritualistic equation of marriage with one man plus one woman, seems to be fine with all that, but he worries that the amendment's broad language could limit the options of heterosexuals living in sin. He says the amendment, which forbids recognition of "another union, partnership, or other legal status to which is assigned the rights, benefits, obligations, qualities, or effects of marriage,"
could impair "the constitutional rights of individuals to enter into private contracts, and also...the discretion of employers to extend certain benefits, such as health care coverage, to unmarried couples."

Isn't a ban on gay marriage supposed to impair contract rights? I thought that was the whole idea. If the real objection to gay marriage is that individuals and private institutions would be forced to treat homosexual couples the same as heterosexual couples, maybe the answer is more freedom rather than less. Letting employers, hospitals, insurers, etc. decide for themselves which unions to recognize ought to address the complaint that gay marriage is being foisted on people with moral objections to it. And if people like Kaine think the contractual aspects of marriage should be available to unmarried couples, all that's left are government-granted privileges such as joint tax filing status, which can either be eliminated or extended on a neutral basis, assuming there are sound policy reasons for keeping them.

Comments

KipEsquire|4.12.06 @ 6:53AM|#

So once again we have a Democrat who has no problem with anti-gay bigotry per se but crafts a convenient excuse to be nominally (i.e., meaninglessly) opposed to a bigot amendment in a limp-wristed attempt to toe the party lie, er, line.

Just like Bill Clinton, Hillary Clinton, John Kerry and just about every other Democrat of recent note.

Gays should worry less about self-loathing gay Republicans and start worrying more about gay Democrats, who in many ways are just as self-loathing.

|4.12.06 @ 7:39AM|#

The whole problem here comes down to healthcare, children, and estate issues. If employers were not a part of healthcare, as they shouldn't be, then they would be pretty much out of the loop here - talk about freedom! (I'll never understand why Libertarians think that the healthcare drag on employers is a good thing - it hurts trade, causes all sorts of legal problems and litigation, and really ids none of their business - literally and figuratively. What? Should employers provide housing and food too?) Then the matters would be down to healthcare decisions (end of life, etc), family decisions (who gets the kids, etc) and estate distribution (who gets the money, etc). What the racist, anti-gay GOP voters want is for gay "spouses" to have no rights whatsoever in these matters. The Dems would like a level playing field (Kip, I suppose your equivication is somehow better than the Dems' in the example above?). I'll take the level playing field. Fuck "contracts." This isn't business - this is real life. Give them "marraige" or "civil unions."

JMJ

R C Dean|4.12.06 @ 8:28AM|#

I'll never understand why Libertarians think that the healthcare drag on employers is a good thing.

Damn, JMJ, you talk to a lot of "libers" in your head. I have never once, in years of hanging out on libertarian sites, heard a libertarian say that they thought having employers provide health insurance was a good thing.

If its part of the compensation package for employees, sure, why not. Libertarians are generally all about leaving people alone to cut their own deals.

If its subsidized as part of tax code social engineering, like we have now, most libers are opposed, I would guess, because we don't like state-driven social engineering of any kind.

Fuck "contracts." This isn't business - this is real life.

Marriage has traditionally been a contract. Real life is full of contracts, business and otherwise.

Give them "marriage" or "civil unions."

Sure. Whatev. My indifference to this issue is hard to overestimate.

|4.12.06 @ 8:46AM|#

Isn't a ban on gay marriage supposed to impair contract rights? I thought that was the whole idea.

No. There is perhaps a libertarian disposition toward framing social ordering in terms of contractual concepts, but marriage is more a matter of legal status than a merely contractual relationship in which the principal parties to the contract affect primarily each other's rights and responsibilities.

The legal implications of being married are general in a sense being a party to a private contract is not, more like the legal status differences between being a minor or adult, citizen or not, etc. (and yes I know these distinctions can largely be picked apart and collapsed analytically, but that is just to say that we can hammer a square peg into a round hole if we pound hard enough).

Mind you, I would prefer that we re-order marriage into a purely contractual model (which gay couples were welcome to use) and I think Kaine is just blowing smoke, but the questions surrounding gay marriage cannot properly be framed entirely in contractual terms, at least not at present.

|4.12.06 @ 9:09AM|#

"Damn, JMJ, you talk to a lot of "libers" in your head. I have never once, in years of hanging out on libertarian sites, heard a libertarian say that they thought having employers provide health insurance was a good thing."

Interesting, RCD. But isn't that exactly what was said in the blog above?

"Letting employers, hospitals, insurers, etc. decide for themselves which unions to recognize ought to address the complaint that gay marriage is being foisted on people with moral objections to it."

Why should employers have to care about any of this?

"If its part of the compensation package for employees, sure, why not. Libertarians are generally all about leaving people alone to cut their own deals."

Why would any employer want to be burdened with that?

JMJ

|4.12.06 @ 9:17AM|#

Kip:

Here in Virginia, if you value your career you don't so much as give lip-service to the rights of "those goddamned fags".

"Isn't a ban on gay marriage supposed to impair contract rights? I thought that was the whole idea."

But it's only supposed to impair the contract rights of fags, Jacob! If we screw over some godless homos, then it's all good---but screwing over regular ol' god-fearing straight couples? Can't have any of that!

"I'll never understand why Libertarians think that the healthcare drag on employers is a good thing - it hurts trade, causes all sorts of legal problems and litigation, and really ids none of their business - literally and figuratively. What? Should employers provide housing and food too?"

Um, what RC Dean said. I'd love to meet this cabal of "Libertarians" that you keep referring to. They sound like an interesting bunch. Oh, what they're sitting next to you right now? Oh, what's that? Oh, I get it now---the reason I can't see them is because they sprinkled themselves with invisible powder. NOW it makes sense. Uh, hello gentlement, how are you all today...

Though, I will say that if employers and employees want to voluntarily enter into some sort of healthcare-benefits regime, they should be free to do so.

"What the racist, anti-gay GOP voters want is for gay "spouses" to have no rights whatsoever in these matters."

How funny that you mention the GOP, since our good Gubna, Tim Kaine, is a Dem. O. Crat.

"The Dems would like a level playing field"

Please, Jersey, show me where this is at all evident. Tim Kaine obviously has no problem with an unlevel playing field, as he has no problem with banning gay marriage. And, again, he's a democrat.

"Fuck "contracts." This isn't business - this is real life."

"Real life" is filled to the brim with contracts. Most of them, you don't notice as "contracts" because they've been so thoroughly ingrained in our lives, and you don't go through some arduous signatory process with a notary present---but, technically, a great many things are still "contracts". Contracts are by no means restricted to "business"---and just because you enter into a contract doesn't make anything less "real-life".

"Give them "marraige" or "civil unions."

So, you don't care about contracts, but you want something that bestows all the legal rights of marriage, but is called "Civil Unions". Oh, hey, look, a contract!

|4.12.06 @ 9:19AM|#

"I have never once, in years of hanging out on libertarian sites, heard a libertarian say that they thought having employers provide health insurance was a good thing."

Interesting, RCD. But isn't that exactly what was said in the blog above?"

Care to quote where this was said?

|4.12.06 @ 9:21AM|#

Again... ""Letting employers, hospitals, insurers, etc. decide for themselves which unions to recognize ought to address the complaint that gay marriage is being foisted on people with moral objections to it."

JMJ

|4.12.06 @ 9:22AM|#

"Letting employers, hospitals, insurers, etc. decide for themselves which unions to recognize ought to address the complaint that gay marriage is being foisted on people with moral objections to it."

Why should employers have to care about any of this?"

Why should employers "have to" decide what to pay their workers for the work they do? Oh, yes, Jersey, a one-size-fits-all model is sure to work. Except that it doesn't.

|4.12.06 @ 9:25AM|#

So, according to Jersey,

"[l]etting employers, hospitals, insurers, etc. decide for themselves which unions to recognize[...]"

is equal to

"[...]having employers provide health insurance is a good thing."

It's only 9:30am, I haven't finished my first cup of coffee, and JayEmJay is already off the deep end. Awwwhawriiiight!

fyodor|4.12.06 @ 11:13AM|#

JMJ,

In case what Evan said isn't clear, the big difference, the key difference, for libertarians is between "letting" and "having." Now, whether we're right or wrong, whether the difference is meaningful to you or not, the difference is not only meaningful but all important to us. You can say that it amounts to the same thing if you want (if that's actually what you think), but you have any interest in understanding the position of those with whom you are debating, then you must learn to understand the difference and why it matters to us. Then we can debate all aspects of that difference. But if you have no interest in even seeing that difference and claiming that we are advocating one when we are actually advocating the other, then I don't see how any dialogue with you would be possible.

|4.12.06 @ 11:32AM|#

I have never once, in years of hanging out on libertarian sites, heard a libertarian say that they thought having employers provide health insurance was a good thing.

To be fair to JMJ, I have seen the employment-provided system discribed as less bad than most of the other options here on a few occasions. Which is not to say that it's supported, as such, but finding something to be acceptable in comparision to something else does imply that it's not entirely bad.

Wow, I feel unclean.

|4.12.06 @ 11:39AM|#

[Y]ou ... won't enjoy freedom from coercion if you are dead from disease. Freedom from coercion is important, but health is arguably a competing imperative, deserving of equal dignity, even for a moderately committed libertarian. Or so you'd think.

You won't enjoy freedom from anything if you are dead from anything, but nothing follows from that. Coercion is an act by one or more humans toward or against one or more humans; the state is the 'legitimizing' rationale for that coercion. Assuming coercion is, all other factors equal, a bad thing, and insofar as government power is always in some sense coersive, the libertarian objective is the elimination of that particular negative as much as possible. Of course starving to death or dying from disease is a negative, also, but it isn't a government caused negative unless you assume government is or should be responsible to feed people and tend to their health needs.

It all comes back to a central, but usually unspoken, theme here, to wit: which freedoms are more important, freedoms that tend to be relevant to rich people or freedoms that tend to be valuable to poor people?

Given that the power of the state, any state, invariably favors the rich, the less power government has, the less it can favor the rich. Monopolies and oligopolies, for example, tend to depend as much if not more on state protection of one sort or another as they do on what you term market power.

|4.12.06 @ 11:44AM|#

[Y]ou ... won't enjoy freedom from coercion if you are dead from disease. Freedom from coercion is important, but health is arguably a competing imperative, deserving of equal dignity, even for a moderately committed libertarian. Or so you'd think.

You won't enjoy freedom from anything if you are dead from anything, but nothing follows from that. Coercion is an act by one or more humans toward or against one or more humans; the state is the 'legitimizing' rationale for that coercion. Assuming coercion is, all other factors equal, a bad thing, and insofar as government power is always in some sense coersive, the libertarian objective is the elimination of that particular negative as much as possible. Of course starving to death or dying from disease is a negative, also, but it isn't a government caused negative unless you assume government is or should be responsible to feed people and tend to their health needs.

It all comes back to a central, but usually unspoken, theme here, to wit: which freedoms are more important, freedoms that tend to be relevant to rich people or freedoms that tend to be valuable to poor people?

Given that the power of the state, any state, invariably favors the rich, the less power government has, the less it can favor the rich. Monopolies and oligopolies, for example, tend to depend as much if not more on state protection of one sort or another as they do on what you term market power.

|4.12.06 @ 12:06PM|#

I wonder why Dave W. keeps posting under these smarmy surnames? Anyway...

"On still a deeper level, libertarianism doesn't run all the way to anybody's core. If it did, then the person would be an anarchist, I think. One easy way to see this is the eager fondness HnRers have with our "night watchman" military. Freedom from coercion don't mean much if an invading army will come tomorrow and put me in shackles. Fair enough, but you also won't enjoy freedom from coercion if you are dead from disease. Freedom from coercion is important, but health is arguably a competing imperative, deserving of equal dignity, even for a moderately committed libertarian. Or so you'd think."

This is a radically disingenuous position. It might be logically sound, but it purposefully ignores the differences (yes, there are differences) between anarchy and libertarianism. Yes, you can take a hardline "cold logic" stance and draw the conclusion that if you support state-sponsored anything, then you must support state-sponsored everything. This is absolute principle...but has little bearing on reality. The difference between libertarianism and anarchy is that we libertarians recognize that there are, admittedly, some things that the government of a republic can and should do to ensure its own survival. Anarchists deny this unequivocally. Yes, abstractly, this is a big difference---but we don't live in abstractions, Dave.

So, if I can argue that the state is better at protecting the republic against foreign invasion than would be small militias, while at the same time arguing that the free market would be better at providing medical care than the state, it is not contradictory in any sense except in the narrow realm of "is coercion ever okay". I dunno about you, but, that realm of debate is not really relevant to my life-it is only useful in the abstract intellectual discussions of principle with anarchists like Gene Callahan.

|4.12.06 @ 12:08PM|#

It all comes back to a central, but usually unspoken, theme here, to wit: which freedoms are more important, freedoms that tend to be relevant to rich people or freedoms that tend to be valuable to poor people?

Given that the power of the state, any state, invariably favors the rich, the less power government has, the less it can favor the rich. Monopolies and oligopolies, for example, tend to depend as much if not more on state protection of one sort or another as they do on what you term market power.

I agree that the state often does do things to support monopolies and oligoplies, and the US healthcare law and taxation is one important example of that. However, I strongly disagree with your implication that monopolies and oligopolies fail to develop under a weak government. My preferred solution is a government that is weak in the budgetary and micromanagement senses, but hella strong in the oligopoly smashing sense.

|4.12.06 @ 12:14PM|#

Sorry, posted too early.

Anyway, I don't see how "health" can be a
"competing imperative" with national defense. You've framed the debate in incorrect terms. You make a big mistake when you suppose that the libertarian justification of national defense is that, without it, we might not be around to enjoy freedom. This is misguided. Instead, as I noted above, it's simply the stark realization that there are indeed a few things that the state actually does best, and would be failures if left up to the private sector...including national defense. So, from THIS standpoint, your comparison of national defense and health is not necessarily valid, unless you can prove that the state does medicine better than the free market. Good luck on that one.

|4.12.06 @ 12:18PM|#

why Dave W. keeps posting under these smarmy surnames

To avoid publicity. I am not interesting in creating a package where all my controversial opinions can be rustled up in a single GOOGLE search. there are people here who try to track down people in the real world and cause them problems. My various surnames make it harder to do that. Sometimes I tuck a clever little hidden message in the by-line, too.

|4.12.06 @ 12:19PM|#

why Dave W. keeps posting under these smarmy surnames

To avoid publicity. I am not interested in creating a package where all my controversial opinions can be rustled up in a single GOOGLE search. there are people here who try to track down people in the real world and cause them problems. My various surnames make it harder to do that. Sometimes I tuck a clever little hidden message in the by-line, too.

|4.12.06 @ 12:21PM|#

Well, getting back to the topic at hand, it's pretty easy to tell that he is pandering to as many sides as possible, due to his weak excuses and his witholding of signature.
- By not signing it, he still lets the amendment progress to the next stage.
- By not signing it, he can pander to liberal Dems/Reps, gays and their sympathisers.
- By trotting out his weak excuse, he's reaching out to the gay bashers by saying it's ok to deny contracts to gays but not for straights.

Sounds like more politics as usual.

|4.12.06 @ 12:30PM|#

unless you can prove that the state does medicine better than the free market.

what metric of comparison would you like us to use?

Cause I was thinking life expectancy, but maybe life expectancy normalized against GDP would be a fairer comparison. Of course this doesn't take into account some quality of life issues like obesity or diabetes.

Maybe it is more important to consider how much profit is being made. Profits are nice.

Sandy|4.12.06 @ 2:12PM|#

Why should employers have to care about any of this?

Have to? Not at all. Be able to? Sure, they may find that it presents them with an edge in attracting the kind of talent they want to attract. Some people might opt for a lower salary if someone else does the insurance benefits paperwork.

The point is that it should be up to them, not a state solution.

Again, it might be nice if you read some of our positions on things instead of making wild assumptions based on assuming we're somehow a bunch of yahoo religious conservatives. You may find out that the literature at the Green Party meetups may straw-man us just a bit.

|4.13.06 @ 12:17AM|#

What, so the idea is that Kaine is the bad guy here because... he's a Democrat?

Kaine is opposing a bill that is so broad that it could bar two men from owning a house jointly, regardless of whether they are gay or not. He's opposing the idea that you can use not wanting to extend the definition of marriage to bar homosexuals from equal treatment and contract rights. But he's a Democrat, so OF COURSE he's the bad guy. What was I thinking?

Lets all support the Republicans who are seeking to ban gay people, because that makes TONS of sense!

Larry A|4.13.06 @ 5:26AM|#

Personally, the complete irony here is that the folks pushing the law against homosexual marriage do so because God allegidly hates gays.

Yet they go to great lengths to make sure the laws don't impact heterosexual people "living in sin" or in second marriages, despite the fact that adultry is one of the Big Ten Bad Things.