Gay Marriage

Help! I’ve Run Out of Things to Say About Gay Marriage Bans Being Struck Down!

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Also, maybe getting just a touch resentful at all the pictures of happy gay couples.
Credit: Varina And Jay Patel | Dreamstime.com

Last night a U.S. district judge ruled that Idaho's ban on same-sex marriage recognition was unconstitutional and ordered the state to start handing out licenses beginning Friday.

This ruling is right on the heels of a similar decision by a county judge in Arkansas last Friday. Gay couples in that state have started getting married, though the state is looking to suspend the order for appeal.

The most important thing to learn from Idaho's ruling is that the governor's name is two pieces of gay slang, Butch Otter. I'm pretty sure I've seen guys described with those exact words. Despite the gay-friendly name, he declared he will appeal the verdict.

Anyway, I'm making fun of Gov. Otter's name because I am unsure of what else I can add to the discussion of gay marriage recognition. I've written something about each of the rulings for states like Texas, Michigan, Arkansas, and many of the other pro-recognition rulings that have come in the wake of the Supreme Court's United States v. Windsor decision that struck down part of the Defense of Marriage Act.

I lamented this morning that I had run out of things to say about the issue, prompting this amusing tweet:

At least it's not about video games, right?
Twitter

Well, there's this: Every time a ruling like this happens, there's a dozen comments or so about getting the government out of marriage entirely. While I think that's a great goal for creating an equal playing field in areas like government entitlements and taxation, I still have deep fears our court system won't know how to deal with legal family conflicts.

When a federal judge in Oklahoma struck down the state's ban on gay marriage recognition, a conservative state legislator named Mike Turner said he was going to craft a bill eliminating government marriage in Oklahoma entirely. After the quick rush of initial, extremely superficial stories, I attempted to get in touch with him to delve deeper into the proposal to see if he had researched or thought about all the things the state would need to change if it were to end official marriage licensing. Unfortunately, he declined to speak further on the matter, leaving some coverage to characterize his actions as some sort of "cut off his nose to spite his face" act of retribution.

Who knows—they may be right about Turner, but that doesn't mean other efforts to divorce marriage from the government are about denying people the right to freely associate. From the libertarian perspective, it's the opposite. The government is the barrier, not the liberator. So a thought exercise: Presume that we can't just eliminate marriage licenses entirely, as much as we might want to. The good news in these gay marriage rulings is that judges are pointing out that the state doesn't really have an actual stake in using marriage incentives to further breeding (and isn't handing marriage licenses out based on the concept anyway). What actually can or should be done next to further reduce government involvement in our family composition choices?

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140 responses to “Help! I’ve Run Out of Things to Say About Gay Marriage Bans Being Struck Down!

  1. our court system won’t know how to deal with legal family conflicts

    Yes,it has fallen to this.

  2. The squirrels seem tired of this subject too.

  3. I still have deep fears our court system won’t know how to deal with legal family conflicts

    We have a vast body of partnership law to apply to any kind of dispute over property.

    As for children, parental rights go to the biological parents, married or not, up until there is some kind of adoption.

    I just don’t see the big problem here.

    1. Neither do I.

    2. Considering that licensure of marriage was not pervasive prior to the Civil War why don’t we just go back to the way we used to do it.

      The conservatives have ALWAYS missed the boat on this issue. Not because they find gays sinners…that is actually a principled (if wrong) stance. What they seem to not grasp is that by having the government sanction and license a religious practice (nay, a core Catholic Sacrament) they are in effect saying the government can regulate religion. Well I am sorry but I thought they didn’t want Sharia Law?

      1. You know what else we had prior to the Civil War?

        Currently, you’re not married until you have stamped document from the state (which doubles as a cultural acceptance certificate) no matter what your personal intentions. And sans that document and the entitlements it guarantees, people would simple not couple up.

        1. Currently, you’re not married until you have stamped document from the state

          Many (most?) states still recognize common-law marriage, which requires no license.

          1. Louisiana doesn’t recognize such marriages. Even so, aside from tax and community/joint property issues, I really don’t see why a libertarian-minded person would even care if the state approved of their marriage. After all, co-habitation isn’t illegal nor are contracts to donate one’s property to another.

            I always thought marriage was more about spiritual commitment anyway more than having the state give you a certificate “authenticating” the marriage.

            1. it’s like most contracts – that piece of paper matters greatly when there is a dispute, when one party believes the other has reneged on the terms.

              1. that piece of paper matters greatly when there is a dispute, when one party believes the other has reneged on the terms.

                As a lawyer who’s represented spouses in community property disputes and corporations in contract disputes, it does not matter at all. As I keep saying, tax issues and community property aside, the state certificate really doesn’t matter when interpreting contractual agreements.

                1. the paper IS the contract, the marriage license that is. Two people are entering a contract. You don’t get to walk out and leave kids behind with no requirement of support. You don’t get to summarily toss the other out of joint dwelling. Your own experience shows that. People in a marriage vs those just cohabitating are not treated the same way.

                  1. I guess you never read community property, etc aside in my other 50 comments.

                    Can two men/two women have sex and produce children?

                    Does everyone have the absolute right to adopt whatever child they desire?

                    The certificate is actually a LICENSE, not a contract. And if you want to be really precise, a formalized marriage more closely resembles a covenant than a contract.

        2. “the entitlements it guarantees,”

          THAT is the problem in its entirety. What needs to be ended is the institutionalized discrimination against single people.

          “our court system won’t know how to deal with legal family conflicts”

          That’s a strawman. Any number of people can enter into any contract that’s mutually satisfying. In fact, that’s one of the few actual legitimate functions of government – to provide a neutral ground for negotiating disputes, sometimes erroneously referred to as “enforcing contracts.”

          And there’s the baby thing – well, they’re the responsibility of whoever made them, and that’s that.

  4. “pro-recognition rulings that have come in the wake of the Supreme Court’s United States v. Windsor decision”

    At the time, Rand Paul and various Reason writers thought the Windsor decision was about federalism and the feds deferring to states’ definitions of marriage.

    Remember those far-off days?

    1. And remember those “federalism scholars” who filed an amicus brief in *Windsor* calling DOMA “an unconstitutional and unprecedented incursion into States’ police powers.”

      I bet those scholars are really peeved now that federal courts are doing the same thing – engaging in unconstitutional and unprecedented incursions into States’ police powers.

      Indeed, I bet they’re working on their amicus briefs right now supporting federalism and upholding the power of states to define marriage!

      http://www.nationalreview.com/…..-ed-whelan

      1. federal courts are doing the same thing – engaging in unconstitutional and unprecedented incursions into States’ police powers.

        Fail. There is nothing remotely unprecedented about these rulings or unconstitutional-indeed they enforce the Constitution. Please read ‘Loving vs Virginia’ for further reference.

        1. No, I’m addressing the avowed federalists who trumpeted their states-rights principles at the time of Windsor but seem fairly quiet around now.

    2. Defending that ruling and actually staying consistently limited government wouldn’t fetch many cocktail party invites, now would it?

  5. I still have deep fears our court system won’t know how to deal with legal family conflicts

    That’s not an argument for or against doing something.

  6. Marriage should be registered not licensed. State recognized marriage is important to a host of legal issues (child custody, power of attorney, medical decisions, etc.) Any couple wishing to be recognized as ‘married’ by the State, should be able to register as such for a nominal fee like you register your car.

    1. I’m not married, yet it’s clear who has my power of attorney and right to make medical decisions for me.

      1. Is it? If you have a Significant Other and a living parent, then it’s not clear.

        1. It is perfectly clear if you give someone a POA or a Medical POA – relatives and significant others aside.

          1. Exactly.

        2. Yes, it is clear. It’s my sister in both cases. You don’t need to get married to designate someone. There is also no reason that getting married even should automatically designate them. Maybe I still want my sister to make that call and not my (hypothetical) wife.

          1. I hope your sister has a good hypothetical couch for you to sleep on, buster.

  7. Judges keep saying these bans are unconstitutional, but I still haven’t seen any reason why. I’ve seen reasons why they are bad, but that’s not the same thing as unconstitutional.

    1. Warren and you are both right. Which is why I would feel much more comfortable with the Legislative branch of the states making this decision rather than the Judicial.

    2. Most of the decisions I have seen hinge on the “equal protection of the law” clause of the 14th Amendment.

      1. Gays are being treated exactly like straights. If someone raised it as a difference based on sex instead of difference based on sexuality it’d be close enough to at least consider.

        1. Straight couples are allowed to get married and gay couples are forbidden. So no. They’re not being treated the same. Indeed you could not possibly posit more similarly situated persons than John and Joan, each wishing to marry Joe.

          1. A gay man is absolutely allowed to marry, exactly the same way a straight man is.

            1. But a gay man isn’t allowed to marry exactly the same way a straight woman is.

              1. “But a gay man isn’t allowed to marry exactly the same way a straight woman is.”

                LOL! Good one. Although you could weasel out of it by saying gays and straights are both allowed to marry a member of the opposite sex.

            2. Depends on what “exactly the same way” means. You might say it means to a woman. Others might say it is to the person he wants to marry.

            3. Yep, and a Christian in Saudi Arabia is allowed to worship God in exactly the same way as a Muslim.

              1. Good one!

        2. Governments refuse to issue marriage licenses to couples based on the sexes of the parties involved. It really doesn’t get any more clearly unequal than that.

          1. Don’t forget unequal treatment based on blood relationships, mental capabilities or respective ages either.

        3. That’s not entirely clear. If you want to say they are equally treated because they can also marry a person of the other sex, OK. But I think that the real equality is having your marriage recognized. Gay people do get married, whether or not the state recognizes it. They are treated unequally under the law because their marriages are not treated the same.
          This is why I am bothered by people who say that gay marriage is using force to redefine marriage. That’s just backwards. Marriage has been redefined. The law needs to acknowledge reality instead of using force to maintain an outdated definition of marriage.

          1. Marriage has been redefined.

            has it? For my entire life and then some, it has meant the union of two people of the opposite sex who are unrelated. Removing the middle part of that changes that definition. It also opens the way to challenging the other two, beyond the part where some states allow cousins of varying degrees to marry.

            I’m not opposed to SSM and would like the govt to butt out, too, but words do mean things. Way back when, marriage often meant being forced into one with someone you didn’t know or as part of a dowry or to maintain a kingdom, but been a while since then.

            1. I think it has. Sure, not everyone accepts the definition. Not everyone accepts the more conventional definition either. Devout Catholics don’t consider a divorced person’s remarriage valid unless the previous marriage has been annulled.
              But the fact is that gay people do get married now, legal recognition or no. That doesn’t mean that every person or every church must accept it (just like the Catholic Church doesn’t have to accept divorce), but it is a common enough thing now that I think it is fair to say that the meaning of marriage has changed. As you point out, it has changed in plenty of other ways over the past several hundred years.

              1. Whst does it mean to “accept” a definition? If you speak the language and use a word differently from the std. meaning, there’s going to be confusion. See what happens when you start vending produce and “don’t accept” society’s definition of “pound”.

            2. For my entire life and then some, it has meant the union of two people of the opposite sex who are unrelated.

              No, it hasn’t.

        4. Gays are being treated exactly like straights.

          Please, just stop.

          Blacks are being treated EXACTLY like whites, both can marry someone of their own race.

          Nothing unconstitutional here.

        5. “Gays are treated exactly like straights”. And in Virginia, prior to the passing of Article 1, Section 16 of the VA Constitution, EVERYONE was Anglican. Since they were all being treated exactly the same, why did we need to amend the VA Constitution in 1792 and allow other denominations?

      2. The Idaho decision was based on both equal protection and due process grounds under the 14th Amendment.

        http://media.idahostatesman.co……So.36.pdf

    3. 14A. See also, “Loving vs Virginia”

    4. Read the Constitution. You’ll find no mention of the words “marry,” “married,” or “marriage.”

      That makes any law addressing it unconstitutional simply by virtue of the fact that the Congress nor the Executive or Judicial have been granted the authority to meddle in personal relationships, notwithstanding the explicit prohibition against establishment of religion.

  8. What actually can or should be done next to further reduce government involvement in our family composition choices?

    Eliminate the child tax credit. Remove the married filing jointly/separately tax filing statuses. In fact, remove the concept of marriage from the tax structure altogether. End the presumptive inheritance benefits and power of attorney for spouses. So much more.

    1. With all due respect, such “reforms” would tend to confirm SoCons’ paranoia that there’s a campaign at work to undermine marriage.

      1. With all due respect, the election of Barack Obama confirmed SoCons’ paranoia that Muslim terrorists are here to impose Sharia socialism on God-fearing ‘Murkins. Catering to their retarded paranoia isn’t super high on my list of priorities.

        1. I believe it would *confirm* what I, tongue in cheek, referred to as “paranoia.”

          Making it so one’s spouse has no special inheritance or POA rights, and so that you have to execute separate documents before a spouse can do what they now can do by virtue of being a spouse?

          I don’t think it’s in the least paranoid to see this as an attack on marriage.

          1. There is a difference between attacking something and merely declining to subsidize it. There is no reason that entering into a religious/civil partnership should entitle the people involved to special status with the government.

          2. Making it so one’s spouse has no special inheritance or POA rights, and so that you have to execute separate documents before a spouse can do what they now can do by virtue of being a spouse?

            Don’t you need to execute marriage documents? So wouldn’t you simply be doing away with the marriage document and substituting another legal document specifying (by choice this time) who has what powers in the event of unforeseen circumstances?

          3. Then again, if there are no governmental perks associated with marriage, then it seems that people would only be getting married if they love each other and want to be committed to each other. Doesn’t that actually strengthen marriage?

          4. “I don’t think it’s in the least paranoid to see this as an attack on marriage.”

            And a lot of southern whites saw the abolition of Jim Crow laws as an attack on white people.

            1. And a lot of southern whites saw the abolition of Jim Crow laws as an attack on white people.

              Then came affirmative action.

      2. would tend to confirm SoCons’ paranoia

        The first step in dealing with a problem is to admit you have a problem.

      3. SoCon’s and their neuroses need to be ignored, not coddled.

    2. Why should we eliminate presumptive inheritance and power of attorney? I don’t see those as “government involvement” at all. More codified standards derived from common law.

      1. How about we just eliminate inheritance taxes altogether? Maybe the worst tax there is.

        The tax code could then be simplified to have a standard per dependent deduction to make it marriage neutral. The only benefit for gay or straight marriage would be if one partner wasn’t employed. At least no more penalty.

        1. “standard per dependent deduction”

          NO! That’s a subsidy on breeding. If somebody is going to bring another hungry screaming poop machine in the world, they should be held responsible for its upkeep, and they should NOT be the recipient of funds stolen from those of us who know better.

          1. That’s the kind of attitude that would have ended humankind long before your parents decided to bring your screaming poop machine behind into the world.
            And that’s why governments, even before they were called that, granted privileges to those who could produce such a bounty – to keep civilization flourishing.

  9. The long march of the government into peoples lives continues.

    Why anyone thinks that giving the government the right to not only get involved in one of the most personnel things that a person can do but allow the government to change the rules whenever the government wants is a good thing is a mystery to me.

    What next, needing a government license to have sex with someone?

    1. Equal treatment under the law =/= marching into people’s lives

      1. I read DJF’s comment as saying that requiring a license to marry anybody is marching into people’s lives, rather than acknowledging SSM is, but I could be wrong.

  10. Here’s your angle on these gay marriage decisions, Scott. I realize its not one that the pro-state-licensed-marriage wing of the libertarian movement is comfortable with.

    Are these courts citing Windsor bootstrapping the dicta in Windsor about equal protection? Does Windsor really require that equal protection analysis be applied to state marriage laws? Is applying equal protection analysis to require state licensing of gay marriage a start down the slippery slope to protected class status for gays? Does this mean that we can look forward to further incursions on the right to contract and free association? Was this the long-term goal of gay activists all along?

    Plenty of meat left on the bone, Scott.

    1. So there’s a pro-state-licensed-marriage wing of libertarians? Really? Please point to some. Point to one that wouldn’t rather have the state out of marriage entirely if that were even remotely possible at this point.

      1. So there’s a pro-state-licensed-marriage wing of libertarians?

        Sure.

        Anyone who argues that state licensing is necessary to be married, or who argues that state licensing should be expanded, is pro-state-licensing, aren’t they? Plenty of libertarians have argued exactly that, under the rubric of “equal protection” (which is itself a stalking horse for protected class status).

        How do you oppose something while arguing its either necessary or should be expanded?

        1. Wow, RC, you’ve become quite the mendacious little shit over this issue, haven’t you. The fact that you sneakily try to conflate “well, state marriage isn’t going anywhere so people should at least be equal” with “you are actually pro state sanctioned marriage” is a slimebag move worthy of a prog. A less than ideal situation being made better for some is not advocating that the less than ideal situation is actually, you know, ideal.

          But you keep fronting your bullshit. It’s sad when someone devolves into becoming a disingenuous liar because their KULTUR WAR panties are in a bunch. You must be so proud.

          1. Epi, you are operating under a serious misunderstanding. I have never had any beef with gay people, or with them doing what they want with their lives.

            What I’m objecting to is the counterproductive argument that libertarians should support the expansion of state involvement in private lives, and the purblind refusal to see that this is the thin edge of a wedge for an even bigger expansion of that involvement.

            This isn’t a culture war thing for me at all. Its about the metastasizing growth of the Total State. Expanding that state is bad, period, full stop. And that’s where the current kerfuffle over gay marriage is headed, with the vocal support of many libertarians.

            1. There are a lot more ways in which there is metastasizing growth of the state. Yet, for some…reason…you spend vastly more energy arguing against this one than just about anything else, even though on the scale of government growth this is a fucking blip. One where the effect on your or most people’s general liberties will be nil, and where a small segment of society gets some parity (that doesn’t take away from anyone else’s).

              Sorry for noticing where you decide to spend your energy, but it seems somewhat at odds to what you say your motivation is. You’re just fighting so hard against something that makes almost no difference to most people. That seems weird to me. Not to you?

              1. Yet, for some…reason…you spend vastly more energy arguing against this one than just about anything else,

                Well, it is an interesting topic that libertarians are divided on.

                And its a topic that Reason constantly posts on. Which provokes commentary and discussion.

            2. I have never had any beef with gay people, or with them doing what they want with their lives… I’m objecting to is the counterproductive argument that libertarians should support the expansion of state involvement in private lives, and the purblind refusal to see that this is the thin edge of a wedge for an even bigger expansion of that involvement.

              My thoughts too RC. I am mainly taking issue with the way Reason presents the legal arguments over this issue as insufficiently nuanced to account for all the rights and issues at stake.

              1. You’ll understand Reason’s thinking once you realize that gay marriage along with pot legalization, vaping, open borders, unrestricted abortion and stuff like raw milk and food trucks are to Reason’s staff as belief in the efficacy of the Seven Sacraments was to old time devout Roman Catholics.

                1. Or you could look at what they, and others who more or less agree, actually say about it instead of making up your own completely unfounded assumptions.

            3. I’m objecting to is the counterproductive argument that libertarians should support the expansion of state

              These arguments only exist in your head. There is no logical reason to equate equal marriage law with an expansion of the state. Your insistence otherwise is typical of SoCons turning into mendacious whiny cunts over this issue.

              1. There is a logical argument that legal redefinition of “spouse”, etc. is promotive of the arbitrary state at the expense of objective gov’t, i.e. law. The legalities of marriage are mostly a development of common law, being the result of diffuse, unplanned experience. It’s hard to manipulate such a process for the benefit of one at the expense of another; it’s a lot easier to do so with the state, in fact it’s just about all there is to statism.

              2. When are we going to see an article with a full-fledged defense of me wanting to marry my sister?

                Hell, my sister was a post-menopausal lesbian when she died at age 45 in 2006.

                But, there were Socialist InSecurity benefits to be had.

                Defend my right to a Gov’t privilege!

              3. “There is no logical reason to equate equal marriage law with an expansion of the state.”
                Yet we have already been confronted with legal action – by, and with, state sanction – against those who want the freedom to not recognize gay “marriage” and refusal to assist in its celebration.

              4. “There is no logical reason to equate equal marriage law with an expansion of the state.”
                Yet we have already been confronted with legal action – by, and with, state sanction – against those who want the freedom to not recognize gay “marriage” and refusal to assist in its celebration.

        2. How about any two people can get married (or even any group of people, what do I care?)? Then you don’t need special classes. I really don’t give a shit if someone wants to marry his sister or father or whatever. Call it “civil union” or something. It doesn’t have to involve sex or love either.
          It seems like a good and useful thing with few downsides (if you can avoid the protected class thing) to have an easy, cheap ready-made contract for people who want to partner up for whatever reason.

      2. And no, I don’t count handwaving about how the state should get out of licensing marriage altogether, when its made in conjunction with support for the necessity and/or the expansion of licensing.

        Its like saying, well, the special privileges given to protected classes should be repealed, but really, the priority is to add some new protected classes. Or, like saying that we should get rid of sovereign immunity and privileges for cops, but to be fair we should extend them to private security guards.

        1. I never seem to stick around for people’s answers when I ask this. Maybe this time.

          You make the argument that maybe we shouldn’t expand marriage licensing to gay people because it expands the states involvement in people’s lives. Would the same arguments not apply to attempts to repeal anti-miscegenation laws? How is that any different? In both cases you have arbitrary restrictions on what marriages can be recognized by the state and the change in the law would expand the number of people in whose marriages the state is to some extent involved.

          1. You make the argument that maybe we shouldn’t expand marriage licensing to gay people because it expands the states involvement in people’s lives. Would the same arguments not apply to attempts to repeal anti-miscegenation laws?

            Sure, to some extent. One important distinction here is my belief that gay marriage is a stalking horse for extending special privileges to yet another protected class, which isn’t going to happen with miscegenation.

            But libertarians are making an error in making any argument that supports the legitimacy of state licensing of personal relationships. This is an opportunity to attack the root cause, which is state licensing. Extending or expanding it in any way is going in the wrong direction.

            1. I understand the worry about special privileges. And the objection to the very notion of licensing relationships. I’d much rather see state recognition of relationships that exist than definition and license to certain classes of relationships. I’d really rather have a state that does almost nothing in any area including marriage, but that is likely to happen some time after heroin and meth are legalized. So I think the next best thing is just to recognize whatever personal unions people want to make with each other. We’re going to have to deal with protected classes and public accommodation laws with or without gay marriage.

              1. And I wonder if any married libertarians on here who argue against gay marriage on that basis put their money where their mouth is and refuse to get a marriage license (where’s robc at anyway?).

                1. And I wonder if any married libertarians on here who argue against gay marriage on that basis put their money where their mouth is and refuse to get a marriage license (where’s robc at anyway?).

                  Fer chrissakes. Are we really going the chickenhawk route here, and saying that if you oppose the prohibition on concealed carry without a license, then you should not get a CCW license? Or that if you oppose the income tax, you shouldn’t claim any deductions?

                  1. Well, if the objection is that gay marriage woudl get the government involved in more people’s relationships, why would a person making that objection want to get the state involved in his relationship? Without a CCW license, you can go to jail. If you don’t file your taxes properly, you can lose some money. Without a marriage license, you can still be married without fear of punishment.
                    And I’m just giving robc some shit. This really isn’t my serious argument on the subject.

            2. In a state like Idaho, with a significant number of politically active SoCons, this decision could actually serve as a catalyst for getting the state out of the marriage business. It might at least get that conversation started, which would not have occurred if the decision had gone the other way. I don’t like having to count on people’s irrational fear of the private lives of others in order for liberty to advance, but I wouldn’t oppose such an effort either.

              There is some truth, however, to the idea that it could be a stalking horse for the establishment of another protected class. There has been a push here in Idaho to add sexual orientation to the Idaho Human Rights Act. It has failed for eight years, but the push continues. The problem is that promoting freedom of association and freedom of contract is easily demagogued as bigotry, so people are afraid to even discuss the issue.

          2. It’s different because an anti-miscegenation law is a restriction on action which is possible. Redefinition is something else entirely.

            It’s like an ordinance saying you can’t have a dog vs. an edict defining dogs to include cats.

    2. pro-state-licensed-marriage wing of the libertarian movement

      Well perhaps there is such a wing of the movement, but I think the more important breakdown is between the “if we’re stuck with state licensed marriage let’s make it equal wing” and the “we’re against state marriage oh yes we really are and we don’t want to expand it while continuing to conveniently take advantage of it ourselves knowing that it will never go away wing”.

      1. if we’re stuck with state licensed marriage let’s make it equal wing

        I’d be more comfortable with this if it were being done legislatively, rather than through the courts using arguments that will lead inexorably to expanding special privileges by granting protected class status. I can see the value of compromise, but this is a compromise with a poison pill in the creamy nougat center.

        we’re against state marriage oh yes we really are and we don’t want to expand it while continuing to conveniently take advantage of it ourselves knowing that it will never go away wing

        So, you also believe that libertarians who oppose the income tax, but take every deduction they can, are being hypocrites?

  11. Is it a “ban?” Or is it the refusal to recognize it? As far as I know, no state is banning anyone from going through a marriage ceremony and calling themselves married.

    If what you really mean are do gay couples get the same tax and property treatment than married couples, well, that’s a different matter altogether. I don’t see how a libertarian can get his panties in a wad over the state not recognizing something if the refusal to recognize it causes no harm whatsoever.

    1. How does ripping a child from the loving arms of their parent count as “no harm whatsoever”?

      1. Who is ripping a child from a parent? Give me an example please.

          1. Your assertion is totally dishonest and incorrect from a legal perspective. A judge has absolute right in many cases to award custody to one parent over the other, if it is in the best interest of the child. If this particular judge thought that it was unhealthy for the children to remain in the custody of a man who was transforming himself into a woman and going through a lot of personal upheaval, than that is the law and it is fair. The same happens to straight couples all the time.

              1. Uh, that is an SEO blog written by someone in India, not actual legal authority. Try harder.

                1. It’s like you don’t even know about Google
                  http://www.drexel.edu/now/news…..T-Custody/

                  1. I read the article and still did not see one cite to a case where a parent was denied custody because he was gay. And you haven’t cited one either.

                    You’re argument is tangential to my comment. You think that a guy married to a woman, who then discovers he’s gay and leaves his wife to get a sex change, and who therefore doesn’t get sole custody of the kids, must be because of a gaycist judge. You argue something I didn’t even discuss.

                    It’s like you don’t even know about reading.

            1. I do believe that at least one of the Idaho plaintiffs was denied the ability to adopt her wife’s child (born from artificial insemination, so no real biological father issue) because Idaho does not recognize their marriage. That is not “ripping a child from a parent” but it does prevent the two from parenting together in a legally recognized manner.

    2. As far as I know, no state is banning anyone from going through a marriage ceremony and calling themselves married.

      Then you haven’t been paying attention. North Carolina does impose criminal penalties on clergy officiating at non-sanctioned marriage.

      1. No Tonio, I don’t think you’re the one who’s paying attention here.

        Why would anyone expect a Christian, Jewish or Muslim clergy to officiate a gay wedding if such relationships are verboten under their own ecclesiastical law? Nobody is stopping anyone from becoming a “gay priest” or whatever made up religion, from officiating a gay wedding. You are conflating the church with the state as is the trend with these Reason writers who cannot seem to have it both ways.

        1. Actually, they are, Duke. The UCC, a Christian church, is suing to be legally allowed to perform gay marriages in NC.

          1. Come on Nikki, not you too…

            You are talking about a christian minister seeking to legally perform a marriage ceremony that the state doesn’t recognize anyway. Nor does the doctrine of christianity recognize “gay marriages.”

            Now a secular law prohibiting a spiritual act of the clergy is inherently unconstitutional and wrong in my view — if that is indeed the case in NC. However, until someone can show me that two men or women cannot meet in a room and say marriage vows in front of a third party who officiates it, then I don’t see the libertarian gripe.

            Either you want the government up in everybody’s marriage, or you don’t want it in anybody’s.

            1. Now a secular law prohibiting a spiritual act of the clergy is inherently unconstitutional and wrong in my view — if that is indeed the case in NC.

              That’s exactly what I’m telling you is the case in NC:

              In 2012, North Carolina voters approved Amendment One, which limits domestic legal unions to one man and one woman. Under state laws consistent with Amendment One, it is a misdemeanor for ministers to perform a marriage ceremony for a couple that has not obtained a license ? which are not available to same-sex couples. Offenses are punishable by up to 120 days in jail and/or probation and community service. The laws also allow anyone to sue a clergy member who performs a marriage ceremony without a license and collect as much as $200 if they prevail.

              http://www.ucc.org/news/free-r…..82014.html

              1. damn Nikki…that is stone cold authoritarian. Unbelievable.

                Plus, like I said above, having the government enforce YOUR religion today could be bad when YOUR religion isn’t the favorite tomorrow.

                p.s. You are still my favorite worst.

                1. Thank you CB! And, right on!

              2. OK, Nikki, I remember this article a while back. The law is an attempt to do an end-run around gay civil unions I guess since it requires the license before the ceremony.

                However, the main legal reason this law is repugnant is that it imposes a secular requirement on the clergy for their ecclesiastical functions. And would therefore seem to violate the 1A. I would imagine the law would eventually be struck down as unconstitutional. And sure, I hate laws like this.

                But still, can someone who is not part of the “clergy” officiate a gay marriage? That is really the question to ask.

                1. Why is that the question to ask if you’re a gay member of a UCC church who wants your own minister to officiate at your wedding? Come on.

                  I get the distinction you’re making, but it’s bullshit unfair to religious gay couples, who do exist. It’s also bullshit unfair to, say, religious libertarians and anarchists who want to get married without a license.

                  Strike it down on 1A grounds and leave it legal for clergy and laypeople alike to perform non-state-recognized gay marriages, and I won’t object.

                  1. I don’t disagree with you Nikki, I emphatically agree. After posting, I realize my comment did not articulate my position that well.

            2. Nor does the doctrine of christianity recognize “gay marriages.”

              How presumptuous of you to speak for all christians. There are plenty of christian denominations that have no trouble with gay marriage. Or are you pulling a “no true scotsman” on us?

              Also, much reformed judaism is down with the gays, too.

              1. Point to me in the christian bible or jewish torah where homosexuality is condoned or where it allows them to be married. Christian doctrine comes from the bible, not modern traditions.

        2. That’s delicious, Duke, the person bringing the suit against the state of NC is a Unitarian minister. Whatever you may think about that denomination it is pretty well-established although very much a (numerical) minority in most areas.

          “made up religion” LOL That’s all of them.

          1. Oops, United Church of Christ, who are certainly more christian than Unitarians, but the point still stands.

        3. You are conflating the church with the state

          The law is doing that. In most states, clergy are automatically empowered to officiate marriages. And also subject to any rules about such, as is the case in NC.

  12. “What actually can or should be done next to further reduce government involvement in our family composition choices?’

    Eliminate virtually all laws against polgamy and incest. Other than retaining the polygamy by fraud, and coerced incest provisions allowing people to construct family and sexual structures in any way they see fit as long as there is no force or fraud involved but only providing government recognition of a single 2 party relationship.

    Strengthen medical power of attorney laws and similar private contractual obligations so that people with non traditional lifestyles can use contracts to approximate the connections they want in their lives.

  13. What actually can or should be done next to further reduce government involvement in our family composition choices?

    The state and federal governments should change the word “marriage” to “civil union” in all their legislation. Then the state isn’t licensing marriage.

    Was this supposed to be a hard question?

    1. The next next step would be to change “civil union” to “household incorporation”, and any number of people should be allowed to incorporate into a household, thus decriminalizing polygamy.

      1. I’m fine with decriminalizing polygamy. But you can’t do that with a stroke of the pen. Working out all the legal implications will take time. Unlike gay marriage where we can just stop discriminating.

        1. Working out all the legal implications will take time.

          Again, I just don’t see the difficulty. Partnership law applies equally to partnerships of two, or more than two. Parental rights start with biological parents, and shift only when there is an adoption.

          Why does adding a third person to a private arrangement suddenly make it fabulously complex, novel, and impossible to handle?

          1. You’re bleeding lying on the table. Who gets to decide if they can take your kidneys? Your first wife? Your most recent wife? The wife you have the most children with?

            1. The senior member of the household corporation. Don’t like it? Name someone else.

            2. You’re bleeding lying on the table. Who gets to decide if they can take your kidneys?

              Whoever you name in your medical power of attorney.

              Don’t have one? Believe it or not, states already have laws that are easily adapted to plural marriages. Those laws say that, if your siblings or children are your state-designated default decisionmakers and there is more than one of them, majority rules. If they deadlock, then consent is not forthcoming and nothing is done.

              Seriously. Give me a hard one.

          2. I recall exactly one problem that was brought up on this before, namely the protections one gets against testifying against a spouse. The concern is that a gang could all marry each other and then they couldn’t be forced — under threat of perjury! — to rat on each other in court.

            I don’t know much of the legalities here, but this seems a minor point that could be made an exception in racketeering style cases with case law picking up the intricacies.

            1. But that’s an epecially easy one for most(?) libertarians: Nobody should be forced to testify, period.

    2. The state and federal governments should change the word “marriage” to “civil union” in all their legislation.

      That was proposed early on. The gay activists were adamantly opposed. Their priority isn’t equality before the law, its state sanctioning of their relationships.

      1. Their priority isn’t equality before the law

        Objection! Counsel is asserting something he cannot know.

      2. Also, IIRC, Idaho’s law was one of the most strict, and essentially ruled out any possibility of civil union or other alternate arrangement.

  14. “The most important thing to learn from Idaho’s ruling is that the governor’s name is two pieces of gay slang, Butch Otter.”

    This did make me actually lol.

    But seriously, relating marital status to taxes is bullshit. That’s the only reason any of this matters. And even if gay marriage gets legalized, it’s still discriminatory towards single people. The government should not be involved in personal matters, period. But these days, the government types just can’t help themselves.

  15. That’s the only reason any of this matters. And even if gay marriage gets legalized recognized, it’s still discriminatory towards single people. The government should not be involved in personal matters, period. But these days, the government types just can’t help themselves.

    I agree but have to take issue with the use of “legalized.” What gay marriage proponents are arguing for is that the states and federal government recognize gay marriages. Using language precisely in the law is essential so that you can refine your arguments. The spiritual/romantic component of marriage (which is all that matters to me with respect to my wife) remains intact.

  16. “I still have deep fears our court system won’t know how to deal with legal family conflicts.” You don’t need to be. There’s absolutely no realistic basis for such a fear. Prior to the federal takeover of marriage in late 1989, marriage and family were private institutions. When there was a need to go to court over something, it was handled in civil court – civil laws – civil rights and all that. No problem.

    The bigger thing is that no one in Big Media has said anything yet about how the laws have changed and why same-sex marriage bans are now considered unconstitutional when they haven’t been for more than two centuries. So — we’re way way way far away from the point where there’s nothing left to say.

    1. I don’t think there were any gay marriage bans until fairly recently. It just wasn’t addressed by the law at all. And you don’t know if something is unconstitutional until someone bothers to challenge it.
      The first amendment was hardly used at all for free speech stuff for a long time. That doesn’t mean that speech restrictions were constitutional.

  17. Wrote up a little proposal for something doable that would help pending removal of the thousands of special rules for the married in current law:

    Let’s suppose (as I proposed here) the states opened up marriage as a private contract and truly respected the couple’s intentions on entrance into marriage. The states might retain family courts but allow marriage contracts to invoke binding arbitration (which would be far cheaper and faster, because like all services run by government, cost, speed, and innovation are not valued by court systems, so they are unmanageably slow and expensive for settling small matters.) The state’s family court would be invoked only when the parties had failed to make proper preparations (as is now true of Probate Courts, now often circumvented by efficient trusts.) The state could outline the minimum requirements for a contract to qualify as “marriage” for legal purposes (to prevent abusive or sham marriage contracts) and set out several model contracts (which would make adjudicating disputes under them simpler by providing the most common options which would then have a large body of previous decisions to examine.) Many people would thus be able to avoid the costly and expensive lawyers now required in adversarial disputes over custody and property.

    http://jebkinnison.com/2014/05…..-contract/

  18. From my (and I hope the libertarian) standpoint, most people (including many libertarians who don’t truly understand the basic issue) are looking at the “right to marry” issue from the wrong direction. It all depends on how you define marriage: whether you define marriage as de facto (a public declaration before friends, family, and community that you are making a life together) or de jure (registering your marriage with the government so that the state has control over it and can tell you when and under what terms you are allowed to end it). In other words, it depends on whether you assume government should have the power to control marriages in the first place.

    Americans have been able to freely decide whom they want to marry de facto at least since the Supreme Court decided Bowers v. Hardwick in 1986. The only change has been that government now has the power to regulate and control de jure homosexual as well as heterosexual marriages.

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