Epstein on Gay Marriage

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Reason regular Richard Epstein makes the case for gay marriage over at the Wall Street Journal (this link should work even for non-subbers). His main point:

conservatives' plea for democratic federalism in defense of traditional values, and then for a constitutional amendment, is wholly misguided. Restore individual liberty to center stage, and this state restriction on same-sex marriages falls to the ground with the same speed as the full panoply of employment regulations, and the extension of antidiscrimination laws into ordinary social and religious affairs.

The path to social peace lies in the willingness on all sides to follow a principle of live-and-let-live on deep moral disputes. Defenders of the illiberal FMA [Family Marriage Amendment] should look to their churches, not Congress and the states, to maintain the sanctity of the marriage.

Whole thing here.

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  1. The link is for subscribers only. Anyone care to post a password?

  2. “Defenders of the illiberal FMA [Family Marriage Amendment] should look to their churches, not Congress and the states, to maintain the sanctity of the marriage.”

    But it is sooooo much easier to get the state to cram our backward notions of morality down people throats than to just live our own lives.

    Besides we might catch “THE GAY!”

  3. I couldn’t get Epstein’s full article because of password issues, but a weak version of the amendment – one that doesn’t ban gay marriage but simply prevents federal courts from finding a right to gay marriage in the fourteenth amendment – is at least defensible insofar as it would return the issue to the states. This may be a good comprise in an imperfect world where federal appellate judges use the fourteenth amendment selectively to advance a rather liberal, rather than libertarian, vision of how our society should be.

  4. cant get it to work, WSJ site not doing what it should be. that link should bypass the login, it is a “email this article” link that subscribers can send to anybody. try it later.

  5. We have soldiers in Iraq and Afghanistan, there are a whole lot of other things presidents and legislators could be doing and Bush, Santorum, and others are screaming for an amendment that defines marriage. Yes, these people really believe that is how society should be (traditional values?)I think I heard Santorum go on how marriage is not just a contract. Sorry Rick, as far as the government should be concerned that’s all it is..a contract. Let the churches form their own policy on who should be united in “holy matrimony”. There is a line of thought out there that believes Bush is using this issue to assure the evangelical republicans that he has not abandoned them. Personally I feel he would maintain his current position in regard to gay marriage even if he were 100% assured of the social conservative vote.

  6. Con (Law) Man:

    This begs the question: Why is state-based bigotry better than federal?

  7. I almost spit my dinner out a minute ago when I saw Frist on TV (no sign of Dean “Mr. Herbie” Jones in the spot who was supposed to be there) saying that those darn Democrats were “forcing” a voting on the FMA instead of ‘carefully debating a constitutional ammendment’ and he’s hoping to postpone the vote until later (hopefully, after pigs learn to fly but most likely Sept when the House takes it up)! With a flip flop like that, he might as well have had a white flag in his hand.

    I so loath these FMA’ers.

  8. Exactly. Giving civil rights issues back to the states is the way back to Jim Crow.

  9. Kevin:

    You didn’t really answer the question. If libertarian principle states that we must “leave people along” and allow humans to associate with one another as they choose as long as no is harmed, why is a state-level ban on gay marriage less repugnant than a the FMA? Oppression is oppression, it shouldn’t matter if it’s the national or a state government that’s doing it, it’s all the same to me.

  10. “When it’s at the state level, then you are free to emigrate to another state.”

    Excuse me, why should *I* have to to a liberty friendly state when my freedoms are being taken away from me? If libertarianism states that we have freedoms that the state can’t take from you, the size of the government or it’s geographical location shouldn’t matter. It’s the state and it’s people who are in the wrong, not me. I don’t care what the people or legislature of Alabama or Mississippi decide about gay marriage, my right to sleep or marry whom I choose still exists and the government or the people of that municipality should have NO say about it what so ever.

    I refuse pack up my life and move elsewhere to enjoy my freedoms, and so-called “libertarians” who will excuse oppressive government policies on the state or local level on the ground “oh, at least it’s not the federal government” have no right to be called libertarians. Freedom is for all times and all places, not just a select few.

  11. Edit: have to MOVE to…

  12. “My question is what religion is going to support gay marriage? I’m not really versed in any religion and I’m not a believer in any but from what I “remember” the bible does not support homosexuality in any way, shape or form and some other religions would see you put to death for it. ”

    Jason: You are assuming that A) present religions don’t change their outlooks on issues, B) that no new religions can arise that have a tolerant outlook toward homosexuality.

  13. Unitarians, of course! Also the more liberal Protestant denoms, and the oh-so-influential Buddhists. Hindus, otoh, might have a problem with it.

  14. Gee Brian, there are plenty of gay activists (including myself) that would be *fine* with that arrangement! If you read some of the blogs like indegayforum.com or even andrewsullivan.com, you’d find a LOT of agreement for that compromise.

    Whether it be civil marriage, de facto, etc is unimportant. It’s that we want to be treated by our government the same as others. Frankly, it’s a good idea to get government out of religous definitions. The right won’t let that happen because they do see the government as a club of religion (as long as their people are in control).

    For me, religions can be free to be inclusive or exclusive as they wish, that’s not my concern. I’m an athiest and think religon is all bollocks anyway. It’s the equal treatment by the governement that’s the issue.

    FYI, that’s the French system. 🙂

  15. Mark S. writes, “You didn’t really answer the question. If libertarian principle states that we must “leave people alon[e]” and allow humans to associate with one another as they choose as long as no is harmed, why is a state-level ban on gay marriage less repugnant than a the FMA? Oppression is oppression, it shouldn’t matter if it’s the national or a state government that’s doing it, it’s all the same to me.”

    Mark, to understand this, you need to understand the concept of federalism. It’s obvious that you don’t.

    The founders set up this Union of States in such a manner that like-minded folks could all get together and move to a particular state, and vote there, thus, expressing their will. If someone didn’t like it, they are free to move to another state. The only “rights” that the states were obliged to honor without question were the inalienable ones, life, liberty, pursuit of happiness, property. And those were the rights that the federal government was charged to protect. The Bill of Rights gets into specifics with regards to that. Read up.

    However, with regards to everything else, the states should and can act as their citizens wish. As long as the bill of rights is not offended, you can have a communistic-type state in Missouri, and a libertarian-type state in Mississippi. That was the idea behind federalism. The union was set up to protect certain inalienable (negative) rights, but the states could choose how they live, and people were free to move from state to state.

    That is the difference between “oppression” at the state level, and “oppression” at the federal level. When it’s at the state level, then you are free to emigrate to another state. When it’s at the federal level, you have no choice. No matter where you go, the law is the same. It is inescapable.

    Furthermore, this isn’t “oppression”, unless it’s coming from the federal centralized government, and its prohibiting gay marriage. Otherwise, it’s a matter of positive rights. The constitution is based on NEGATIVE rights. It says that the government CANNOT abridge the right to free speech. It CANNOT abridge the right to a well-armed militia, or to keep and bear arms. These are negative rights. Granting priveleges based on some sort of cultural bond, which is what marriage is, is a POSITIVE right, something that the feds have no business in. The US government should have no say in any type of marriage, gay, straight, polygamist, etc.

    Now, do you get the difference between federal oppression and state oppression? If a group of people doesn’t like how one state runs things, then they can emigrate to another state, a la the libertarian Free State Project, and vote to change the laws there. This is truly representative government. It is the purpose of having states. Otherwise, why bother? Why not just have one big ol’ country?

    No, the difference between state law and federal law is vast, and is the core reason why we have states at all.

    Federalism should not be taken lightly. You should perhaps read The Federalist Papers.

  16. I agree that marriage is a religious matter. My question is what religion is going to support gay marriage? I’m not really versed in any religion and I’m not a believer in any but from what I “remember” the bible does not support homosexuality in any way, shape or form and some other religions would see you put to death for it.

  17. Epstein’s piece has been reprinted on Cato’s web site.

  18. Mark S. and Gadfly,

    Legally codified racial discrimination violated the original understanding of the Fourteenth Amendment. State regulation of gay marriage does not. The purpose served by leaving the latter issue to the states is to have a federal government limited to, you know, what the Constitution actually *says*.

    A federal government powerful enough to grant rights outside its jurisdiction, and without Constitutional authority, is also powerful enough to take them away without Constitutional authority.

  19. As a libertarian, I feel (as usual) that the best possible solution would never be considered by anyone in power: eliminate marriage as a government-regulated institution, let religions deal with marriage however they want, and allow people who cohabitate to draw up contracts reflecting their needs.

    But no, not even many gay activists will support this, since it will cut out a potential slice of government pork for gay couples. sigh…

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