You Say Marriage, I Say Mah-rriahge

New at Reason: Jacob Sullum looks at the semantic discussion over civil unions.

Comments

[Randy]

Agreed. The state and religions should not be combined in anything. The only legitimate arguments against homosexual marriage have been religious, and religious arguments have nothing to do with the law (or, at least, they shouldn't). Thomas Finneran first came out against all gay marriage possibilities, then he flip-flopped, saying he wasn't against civil unions, and now he's even forwarded an amendment that suggested the Legislature could enact civil unions for homosexuals. Of course, if you make civil unions for everyone, and reserve "marriage" for religious ceremonies, the entire issue is put to bed.

[alkali]

From the point of view of civil liberties, there is a right side and a wrong side with respect to what's on the table. And once again on this issue, a self-proclaimed libertarian refuses to stand with the side of civil liberty and instead writes a meaningless pox-on-both-your-houses essay. Are there any libertarians with any stones at all?

On the same note, Randy writes:

Of course, if you make civil unions for everyone, and reserve "marriage" for religious ceremonies, the entire issue is put to bed.

And if the government doesn't do that, sir, where do you stand?

[Mo]

I've been thinking about this for a bit and wondering if it really is just a semantic difference. I think the difference between a civil union and a marriage is how applicable it is under full faith and credit. Marriages have to be recognized by other states under FF&C while civil unions would not. CUs are a good intermediary until the move into full marriages, but I think the FF&C differences may be the real difference. Any thoughts?

[yelowd]

I still don't understand how this is a civil liberty issue. Everyone has the same access to marriage. Everyone has to follow the same rules. It's not a matter of civil liberty if the law applies equally to all.

alkali, thoughts?

[yelowd]

I still don't understand how this is a civil liberty issue. Everyone has the same access to marriage. Everyone has to follow the same rules. It's not a matter of civil liberty if the law applies equally to all.

alkali, thoughts?

[Hugo Skandrani]

Dear Alkali:

Huh? Your comment was long on rhetoric, self-righteousness and ridicule, but it was nevertheless unintelligible. I honestly don't understand what you said and where you stand.
First and foremost, this is a subjective issue. How can there be a wrong side and right side? Secondly, I am quite underwhelmed by your metaphor "what's on the table". What are you referring to with that metaphor? Could you please provide a specific example of how "a self-proclaimed libertarian refuses to stand with the side of civil liberty"? Furthermore, the essay wasn't meaningless to me because I understood it. If it was meaningless to you, that is not a reflection on the essay. It's a reflection on your limited capacity to understand. You're a typical maternalist, paternalist demagogue. All your opinions are backed up by nothing more than hollow rhetoric, subjective reasoning, ridiculing, belittling and confrontational, antagonistic ad hominum attacks. Like a typical demagogue you probably don't understand the difference between concrete objective facts and abstract subjective rhetoric.

[rst]

Are there any libertarians with any stones at all?

Libertarian does not mean blindly progressive. That's liberal. Libertarians are generally opposed to the government handing out marriage licenses in the first place. Now a tiny section of the population wants the government to hand out more marriage licenses. This is something that would logically be met with more opposition from libertarians.

[dragoon]

Mo, that may be one part of it. Federal recognition is also probably a reason.

[speedwell]

rst, lest you and I both think we are dinning sense into the ears of the deaf, that's exactly the point I've been trying desperately to make all along.

So long as the government can decide who can and cannot enter into what sort of relationship, we are property.

[alkali]

yelowd:

It's not a matter of civil liberty if the law applies equally to all.

I think it's pretty clear that government can deny civil liberties without being corrupt or arbitrary in how it does so. A ban on interracial marriage would apply equally to everyone too.

Hugo writes, among many other things:

First and foremost, this is a subjective issue.

Well, I suppose it is. Whether you think banning newspapers or having to stop at stop-signs would constitute a more oppressive government act is a subjective question too. Presumably libertarians can figure out the right answer.

rst writes:

Libertarians are generally opposed to the government handing out marriage licenses in the first place.

As a practical matter, I never hear about how libertarians want to eliminate marriage licensing as a government function until the issue of gay marriage comes up. The rest of the time, they seem to be fine with it.

... Now a tiny section of the population wants the government to hand out more marriage licenses. This is something that would logically be met with more opposition from libertarians.

By that reasoning, "libertarians" would not be neutral on but would actively support a ban on interracial marriage.

[joe]

"Libertarians are generally opposed to the government handing out marriage licenses in the first place."

And if the other boys won't play the game the way libertarians want, libertarians are going to take their ball and go home.

There is a yes/no question on the table. You are either ducking the question, or engaging in disreputable "worse is better" politics.

[Swamp Justice]

I think there are four options here:

1. Heterosexual marriage and nothing for homosexuals
2. Heterosexual and homosexual marriage
3. Heterosexual marriage and homosexual civil unions
4. Heterosexual and homosexual civil unions

Today we have 1. People are proposing 2 and 3. I think the libertarian ideal is 4, which is not currently an option. So the question becomes, which is an easier stepping stone to 4: 2 or 3?

[Citizen]

Understandable Joe. But the whole reason this is even an issue is because the debate has been reframed over the last 50(?) years. Looking at the question as it might have been posed in the past, "Should we stone queers for engaging in immoral sexual deviance or should we try to reform them through bizarre 'medical treatments?'" How would one answer that? You can't. You have to attempt to reframe the question, you have try move the debate to more fundamental questions of nature of the relationship between society and it's people, between government and it's people.

[rst]

Not being a libertarian I haven't the urge to defend their belief system.

By that reasoning...

How fallacious. Chief among the aims of the libertarian is ostensibly less government. A government handing out marriage licenses is not less government. A government banning interracial marriages is not less government. A government that actively does anything more than Measure A (whatever steady state 'A' may represent) is effectively a larger and more intrusive government than that which is represented by Measure A. Are you with me?

[joe]

You're not seriously claiming not to have a preference about whether you'd rather die from hours of blunt force trauma or not, are you?

You are holding gay families hostage in the hopes that their pain will contribute to your unrelated poltical activities. That's not right.

[?]

Is there any truth to the rumor that dhex, joe, and rst are the same person? How many people really post to this site? My theory is that there are only 16, each with an average of 25 aliases. I know I have 15.

Love always,
Jean Bart
(not really)

[rst]

An interesting supposition, JB.

[rst]

I am the REAL rst.
Part, ye imposters!

[rst]

Heh. No, there is only one rst. He is neither joe, nor dhex, nor the other rst.

[nobody]

I used to be ed, but someone stole my identity.
Now I am nobody, but some day I'd like to be somebody.

[The Real Somebody]

Nobody,

You coulda been a contender!
You coulda been SOMEBODY.

[Citizen]

No, joe. The actual comparison is irrelevant to the point that changing the system is infinitely more important than making baby steps into a quagmire.

Yeah, you're right joe, it's much better to force people to change their ideology AND make them pretend to like it. That usually works pretty well. How can you believe that this won't be another Roe V Wade?

[alkali]

SwampJustice writes:

So the question becomes, which is an easier stepping stone to [all civil unions]: [marriage for all] or [marriages for straights and civil unions for gays]?

That's an interesting question. I don't think the answer is obvious: one could argue that if the government started handing out marriage license to gays and lesbians, those who oppose that now might try to get the government out of the marriage business.

Citzen writes:

Looking at the question as it might have been posed in the past, "Should we stone queers for engaging in immoral sexual deviance or should we try to reform them through bizarre 'medical treatments?'" How would one answer that? You can't. You have to attempt to reframe the question ...

Agreed that libertarians are never bound to discuss only the options on the table. But your analogy assumes that both options are equally unpalatable. I don't think that's an easy case to make here, at least on libertarian grounds.

rst writes:

Chief among the aims of the libertarian is ostensibly less government. ... A government banning interracial marriages is not less government. ... Are you with me?

No, I can't say I understand. Measuring with the "less government" yardstick, how is banning interracial marriage different from banning gay marriage?

[dhex]

i yam what i yam.

i'm a lot like god in that respect.

[nobody]

I hate yams, but dhex (if indeed that is really you) is always good for a yuck.

[rst]

I don't support banning gay marriage. I don't support extending marriage rights to homosexuals. I don't support any silly government amendment trying to "defend" something that is not their place to defend. Marriage is a concept owned by the people. This is a republic...the government is not the people. I don't have the option of taking marriage as a whole away from the government. So, I support civil unions.

Let me remind you, and I'll type it slowly: I am NOT a libertarian.

[Warren]

Man and Wife
Say "Man and Wife"!

[thoreau]

"Handing out marriage licenses"?

RST, I just got married last summer. First of all, there was no handout. The taxpayers didn't subsidize my wife and I. We paid for our marriage license.

And yes, it did mildly grate on me to pay $80 to enter into a consensual relationship that's nobody else's business. But I never felt like I was involved in a Big Government program, and neither did my wife.

Here's what it really comes down to: Consenting adults enter into loving relationships with various personal, social, and/or spiritual aspects. When they do so, they want to be able to share their property, share power of attorney, and share the various other responsibilities and privileges of adults managing their own affairs. In order to do so, they need a contract. The government should let any consenting adults enter into such contracts without strings attached.

Now, when the gov't recognizes that contract (and let's face it, recognizing contracts about property and power of attorney IS a legitimate function of gov't, since property rights and whatnot are what the rule of law is supposed to protect), the gov't stamps a word at the top of that contract. That word is "marriage." Never mind that my wife and I are in a relationship that goes so much deeper than the aspects recognized by the state. For one reason or another, the state stamped the word "marriage" atop the contract.

So, now some consenting adults of the same sex come along and decide to live their lives together. On the personal side they're good to go, because they agree on it. On the social and religious side it's touchy, because some people will oppose their union, but that's an obstacle for the couple to work out.

Anyway, they can handle 3 of the 4 bases without the gov't. But then they go to the gov't and say "Hi, we're consenting adults who want to sign a contract to share property, inheritance, power of attorney, and other adult responsibilities." Well, the gov't really SHOULD say "OK, if two consenting adults want to share property and give each other the power to make medical decisions, that's their business." But instead the gov't says "Well, it freaks some people out that you want to do this, so we won't grant any legal force to a contract between the two of you on matters of property and whatnot."

Now, how should a libertarian respond to this: Well, normally we'd be all about life, liberty, and property. If they wanted to sign a contract to buy guns we'd be up in arms about their rights. If they wanted to buy and sell stuff, especially if they had a lot of money, we'd be up in arms about their right to do so.

But then we find out that they're probably having sex in the privacy of their own homes. And we know that some people (ourselves included, perhaps) are a little weirded out by that. (Hey, I freely admit to being weirded out by the thought of gays having sex, just as I was weirded out when my friend married a really fat chick.) And some of us suddenly find an exception to life, liberty, and property: "Sorry, no can do. You see, the contract to share property and whatnot has the word 'marriage' on it. And 'marriage' is a trademark owned by civil society. Well, we oppose the mingling of gov't and civil society. We always have, as a matter of fact. But we never got adamant about it until two guys having sex wanted to sign a contract with a word at the top that is trademarked by civil society. But, we do have a solution: We will insist that the word be taken off the contract before you sign one. Of course, that could take a while. Most people want to keep that word on there. But since we adamantly oppose any further mingling of gov't and civil society, we simply cannot support adding you to the list of people allowed to sign that contract. We'd rather fight the unwinnable fight to remove a popular word from a contract, rather than the ever-more-winnable-by-the-day fight to let you sign that contract and manage your own affairs however you see fit."

Yeah, real libertarian, alright.

[Jeez]

Way to hog the thread, thoreau.

[JB Allen]

thoreau -

You're post helped me understand this issue better. I have absolutely no problem with gay marriage, but what about state legislations (absent a constitutional prohibition) enacting laws that regulate who can marry whom? I don't necessarily buy into the separation of church and state argument, because one could argue that (a) there may be some remotely rational, secular argument for prohibiting gay marriage (I'm using the low-level, anything-is-possible scrutiny courts use when a fundamental right isn't at stake), and (b) separation of church and state has more to do with preventing (i) the restriction of religious expression and maybe (ii) the force-feeding of a particular religious view on the public than preventing individuals from voting according to their consciences (or voting for legislators who will do the same). I prefer your freedom of contract point (as I understand it), but I'm still not sure at what point government should be prevented from regulating contracts (from a legal perspective).

I would never vote for some asshole who made banning gay marriage part of his or her platform; but would I support a court's decision to prevent such an asshole from enacting such a law? I'm not so sure.

[Mona]

I am a libertarian, to the core of my being. My political impulses have been with me since childhood, and when I encountered formal postulations of libertarianism in my early 20s, I had a "click" experience.

I oppose the state being involved in marriage. But, if it is going to be involved, it must confer marital benefits on an equal basis. So, my position is that unless and until the state gets out of the marriage business, it must carry it outin an even-handed manner. For that reason, I support gay marriage. (And I have read quite a bit of libertarian criticism of the state being in the marriage business, independent of the gay marriage issue -- well before it even was an issue.)

I do not approve of Roe v. Wade, and hold similar objections to what the Massachusetts
S. Ct. has done vis-a-vis gay marriage. My political position is the same as the court's, but I do not believe that courts should be rendering political rulings.

As one would expect from a libertarian, I oppose employment discrimination laws. But, when the right gets its undies in a wad over gay pressure to add homosexuals to the list of protected classes, I feel terribly torn. I think employers should be able to discriminate, but if they are not going to be allkowed to, no class "needs" protection more than homosexuals.

It can be tough to be a libertarian. 🙂

[thoreau]

JB-

I admit to having mixed feelings about court rulings on gay marriage. Not being familiar with the Massachusettes state constitution I don't know if the MA court acted improperly. Somehow I doubt that most critics of the MA court are any better-versed in the MA constitution than I am.

In the past week, hearing more about this debate, I have begun to think that maybe change this drastic should only come via legislative action, unless a state constitution or the US constitution clearly, unambiguously mandates it. And I say that not to suggest gay marriage shouldn't be legal, but rather to suggest that maybe process matters. However, despite my ambivalence over the methods, I am unabashedly in favor of legalizing gay marriage/civil unions/whatever.

What did it for me was Jacob Sullum's comparison with Roe vs. Wade. Now, I don't want to open the abortion can of worms. I simply want to acknowledge that the US is one of the few (or perhaps the only?) countries in the world to legalize abortion via a court decision rather than legislative action. By taking this issue away from the legislature and placing it in the hands of the courts we've gotten to the point where there's only one question for the Senate to consider when confirming Supreme Court Justices: abortion. Say what you will about federalism, judicial restraint, strict construction, the bill of rights, etc. etc. We all know what the one issue under consideration is.

I don't want to similarly poison the process of selecting state supreme court justices, or even worse, have this issue enter the federal arena and double the fun when US Supreme Court Justices are nominated.

Finally, I should reiterate my skepticism of those who say "Really, I do favor your right to enter into this contract, but in the interests of fairness and limited government our #1 priority must be to get the word 'marriage' off the contract, then we can work on getting you the right to sign it." It seems fishy to let one word stand in the way of consenting adults signing a contract about property and responsbility, when supposedly our concerns are a government that respects the rights of individuals to manage their own affairs.

[alkali]

thoreau writes:

Not being familiar with the Massachusettes state constitution I don't know if the MA court acted improperly. Somehow I doubt that most critics of the MA court are any better-versed in the MA constitution than I am.

Short version of some legal history you can find in the opinion: in 1976, Massachusetts voters amended the state constitution to add very broad language on equality before the law -- though the amendment did not specifically mention sexual orientation. Since then Massachusetts has systematically gotten rid of most laws that provided for different treatment of gays and straights. With that backdrop, I think the ruling is pretty strongly defensible: are Mass. courts supposed to just ignore the equality language? Other states (possibly California) face a similar scenario.

In a state (like Florida, I think) where there was no comparable equality language in the state constitution and there are still lots of laws that provide for systematically different treatment of gays and lesbians, I don't think a court in such a state could reasonably hold that there was a right to gay marriage under state law, as much as I would like one to be there. Nor do I think you could find a right to gay marriage in the U.S. constitution.

[joe]

"How can you believe that this won't be another Roe V Wade?"

Maybe it will. The courts should do what's right, and let the chips fall where they may. You'd prefer black market abortions for the past 30 years?

[KJ]

"You'd prefer black market abortions for the past 30 years?"

Joe,

it drives me nuts when people describe Roe v. Wade as the Supreme Court decision that "legalized abortion". It did no such thing, of course ? abortion was already legal in a number of states in 1973 (and the trend, such as it was, appeared to favor increasing legalization throughout the country, roughly paralleling the liberalization of divorce law that was in progress at around the same time; in just the preceding 6 years prior to the decision, four states - Alaska, Hawaii, New York, and Washington ? had completely repealed their abortion bans, and 13 others had enacted substantial, but more limited, reforms).

No, what Roe did was to say that there was a ?right? (and, therefore, by necessary implication, a ?wrong?) answer to the abortion question, that abortion was no longer a subject on which reasonable people could, or would be allowed, to disagree. And sure enough, the debate has become completely unreasonable, on both sides, with otherwise sensible and decent people heaping contempt and hate upon those on the other side. The public debate on this question is ugly and gets uglier all the time, and I think the Supreme Court bears at least partial responsibility for that ugliness. Federalism ? letting the debate proceed at its own pace in each of the 50 states ? can be a beautiful thing, defusing the kind of nasty polarization we see surrounding the abortion issue precisely because it defines issues as local, and not national, issues.

I think ?civil union/same sex marriage? an equally contentious issue that could be quite properly playing out at the local level, popping up in different places from time to time ? Vermont here, Massachussetts or California there ? never standing still long enough in one place for it to become the subject of intense national gaze.

Heaven help us if the US Supreme Court decides that same-sex unions must, or must not, be recognized as a matter of constitutional law, for either way that issue becomes the sort of nightmare that the abortion issue has become in our national life.

[Nate]

Hmmm...yes, isn't this the classic problem for Libertarians. Support what seems to be the option with the most freedom under an imperfect and intruding government...or hold out and try to remove all such intrusion first. Obviously the latter goal is much more difficult to achieve. What a conondrum.
I wish I knew the answer.

Contrary to some of the other posts, as a small-l libertarian, I've been opposed to the state's role in marriage for quite some time. To be required to obtain a "license" to get married is not only humiliating but infuriating as well.

As a question to all: What does the state confer upon marriage that other forms of contract do not? Immediately, I'm only familiar with the exemption from testifying in court cases against one's spouse. Are there others?

And on a parting note, you may find this interesting from the Arizona state constitution Article 20-2: "Polygamous or plural marriages, or polygamous co-habitation, are forever prohibited within this state." Should we also consider polygamy for civil unions / marriage?

[scott]

Hey Nate,

this article lists some of the protections afforded married couples at the fed. level

http://www.washingtonpost.com/ac2/wp-dyn?pagename=article&node=&contentId=A17037-2003Dec20&notFound=true

Scott