Gay Marriage

No Local Option on Gay Marriage

Federalism is no longer a viable approach to same-sex unions, if it ever was.

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Bob Barr, the former Georgia congressman who wrote the Defense of Marriage Act (DOMA) in 1996, later apologized for it, saying it embodied "one-way federalism," protecting "only those states that don't want to accept a same-sex marriage granted by another state." Barr regretted that "the heterosexual definition of marriage for purposes of federal laws" became "a de facto club used to limit, if not thwart, the ability of a state to choose to recognize same-sex unions."

Conversely, the 2013 Supreme Court decision overturning that provision of DOMA, while paying lip service to federalism, has led to a situation in which states are forced to recognize same-sex marriage. If there ever was a time when federalism was a viable approach to gay marriage, that time has passed.

That much became clear on Monday, when the Court declined to hear appeals of decisions that overturned bans on gay marriage in five states. Taking into account all of the states in the three circuits that produced those cases, the Court's decision not to intervene raised the number of states that recognize gay marriage from 19 to 30.

On Tuesday a ruling by the U.S. Court of Appeals for the 9th Circuit added five more states to that category, and a pending decision from the 6th Circuit could increase the total to 39. Almost overnight, gay marriage has spread to most of the country.

The Supreme Court set the stage for this development last year in U.S. v. Windsor, a decision that rejected DOMA's heterosexual definition of marriage for reasons that were not entirely clear. Writing for the majority, Justice Anthony Kennedy spent seven pages making the point that marriage law has always been the province of the states, only to veer away from federalism toward an argument based on equal protection and "the liberty protected by the Due Process Clause." 

The Court explicitly said it was not deciding the issue of whether the Constitution requires states to recognize same-sex unions, a point that Chief Justice John Roberts emphasized in his dissent. But Kennedy repeatedly noted that state marriage laws are "subject to certain constitutional guarantees," and Justice Antonin Scalia correctly predicted that Windsor would lead to decisions overturning state bans on gay marriage.

Of the 44 state and federal rulings addressing the issue since Windsor, all but two have said such bans are unconstitutional. The reasoning varies, as does the level of scrutiny applied by the courts, but a consistent theme is that refusing to recognize gay marriages imposes substantial harm that is not justified by any plausible benefit.

That may sound like a policy judgment, and it is. But the rationale for having courts make the call is that bans on gay marriage restrict a fundamental right and entail discrimination that implicates the 14th Amendment's guarantee of equal protection.

In other words, like freedom of religion or the right to arms, this is not an issue that should be left to the discretion of state legislators or voters. It is a constitutional exception to federalism.

Even President Obama, who endorsed gay marriage two years ago, was at that point still saying the issue should be left to the states. But that position was hard to reconcile with Obama's argument that DOMA violated the principle of equal protection, the same conclusion that the Supreme Court ultimately endorsed.

Many conservatives argue that equal protection analysis is inappropriate because gay and straight couples are not "similarly situated." They likewise argue, somewhat circularly, that the right to marry cannot include the right to marry someone of the same sex because that sort of union does not qualify as a marriage.

Tradition clearly supports opponents of gay marriage. But tradition (as well as public opinion) also supported opponents of interracial marriage in 1967, when the Supreme Court overturned state bans on such unions.

Did that decision rewrite the Constitution, or did it extend a longstanding right to people who were unjustly denied it? That is the question confronting conservatives as they adjust to the rapidly emerging reality of gay marriage from coast to coast.

© Copyright 2014 by Creators Syndicate Inc.

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123 responses to “No Local Option on Gay Marriage

  1. All of Reason’s paean’s to federalism while discussing the Windsor case were utter bullshit. Reason’s rationale for supporting whatever policy du jour over the last decade or so has been a completely utilitarian and unprincipled. Whatever stand taken has only served to advance the final goal. Now that they think the endgame is in sight, the mask is taken off. There can be no dissent, no exceptions. It has followed the worst tactics of progressive politics.

    The dishonesty is staggering but not unexpected.

    1. Also, the arguments that Reason has supported have had the additional effect of throwing freedom of association onto the trash heap. They may not have intended that result, but they also did nothing to stop it, and when did good intentions matter if the result is bad?

    2. ^^THIS^^

      And notice there is no mention of states now forcing busnisses to recognize gay marriage like the bakery in Oregon. Reason’s behavior and coverage on this issue has been apalling and proves their worst critics right. Reason will happily sign onto to any fascist agenda put infrom of them so long as it comes clothed in popular culture acceptance. Reason cares about being culturally in tune with the Progs more than anything else

      1. I think you are being abnormally hysterical here. On another note, should interracial marriage have remained a local issue?

        1. I think john’s issue is you support federalism or you don’t. You don’t get to pick which cows are sacred.

          1. Yes I am fine with states deciding to have gay marriage. What I am not fine with is judges deciding they get to decide for the states.

            1. Why shouldn’t Christians just simply recognize gay marriage? No gay is out there demanding that Christian men and women have no right to get married.

              1. No. they are demanding that the government use the gun to force people to recognize their marriages. That is what government marriage is about, coercion. And that is why Libertarians object to it, except when the coercion involves gays coercing people libertarians don’t like. Then it is a moral imperative.

                1. they are demanding that the government use the gun to force people to recognize their marriages.

                  This only occurring because gay people are using the existing court structure to obtain something states have denied them in the first place. This is how the system functions.

                  If Christians could peacefully coexist with gays who were married this would have never even turned into a federal issue at all is my point.

                  1. This only occurring because gay people are using the existing court structure to obtain something states have denied them in the first place. This is how the system functions.

                    For sure. And what is this “thing” you speak of? It is the right to get the government to use the power of the gun to force everyone to recognize their relationships. That is what gay marriage is all about. Ask yourself how the “pro freedom” position is the position that allows another group to use the power of government to force other groups to recognize their private unions.

                2. How is it any more libertarian to use the gun to force people out of public accommodations because of their sexual orientation?

                  Because you arbitrarily value property rights over a civil nondiscrimination right. A government gun enforces one or it enforces the other.

                  1. That is easy for someone who does not value property rights or freedom of association rights to wrongly conclude.

                    1. Property rights don’t necessarily entail the threat of government force?

                      You can be mad that property rights are not more absolute, but saying your position is based on being against government force is nonsense. The cops are either going to be enforcing discrimination or nondiscrimination. At least the latter is less awful and thuggish, the only victims being people who want to exclude minorities from their establishments. That libertarians choose their rights over other all others is a curiosity, not an expression of anti-force principle.

                    2. That libertarians choose their rights over other all others is a curiosity

                      The libertarian concept of rights (including property) are derived from self ownership. Apparently, since you disagree with them, that is not something that you absolutely believe in. That’s certainly your opinion to have, but good luck with that argument.

                      You may view it as thuggish (and I may even agree) when a private property owner ejects someone for reasons you don’t like. But, that’s this thing we call freedom. The patron does not have a right to someone else’s labor.

                    3. Invoking self-ownership is a way to rhetorically weasel out of the argument. I could just say “the right to be free from discrimination in public accommodations” derives from self-ownership. It’s kind of a meaningless concept. The business you run is not your self and your rights as its proprietor are far from absolute. (You can’t mistreat workers, poison customers, etc.) And, to repeat, regardless of how attached to “self-ownership” this position is, you still demand that cops come and expel customers because of their race or sexual orientation. You are defending a right to use public resources to enforce discrimination. That is not automatically the more liberty-friendly position. In fact it’s kind of absurd to say it is.

                    4. I could just say “the right to be free from discrimination in public accommodations” derives from self-ownership.

                      Okay… I can connect mine logically, can you?

                    5. Also, since you don’t seem to want to play any more:

                      You can’t mistreat workers, poison customers, etc.

                      Correct, because, assuming that damage could be proven, that would violate their right of self ownership.

                      you still demand that cops come and expel customers because of their race or sexual orientation.

                      They could also, you know, use say, themselves, or security personnel paid for with their own money. The only thing demanded is that the cops don’t come and arrest people for using their property as they wish. But, let’s, for the sake of argument (and against common sense), give you that. So what?

                      You are defending a right to use public resources to enforce discrimination.

                      No, I’m defending a right to private property, period. How people use that right is up to them. Next thing you’ll tell me is that the ACLU defends the right of the KKK to use public resource to spread hate. No, the ACLU is defending the right of free speech and peaceable assembly, period. And, to repeat, regardless of how anti-hate you are, giving people freedom means giving them the freedom to do things you (and I) don’t like.

                      In fact it’s kind of absurd to say it is.

                      What’s absurd is the lack of logic and understanding in your criticism.

                    6. Invoking self-ownership is a way to rhetorically weasel out of the argument. I could just say “the right to be free from discrimination in public accommodations” derives from self-ownership.

                      Idk if anyone comes back to these this late but:

                      Dave, the above quote is why you cannot reason with Tony. His entire world view is premised on equating businesses that participate in voluntary exchange with “public” accommodations. No matter how much anyone here has explained how businesses are private, own their property that no one else is entitled to, and only make voluntary exchanges w/ willing customers, he will never understand.

                    7. Tony…suppose you were a lawyer. And, your daughter had been raped, and this was well known by the public. A convicted rapist came to you on a subsequent charge and wanted you to represent him as he thought your public stance on the issue would help to make him look innocent. Should you be forced to take his case?

                      Most people would say ‘no’ you shouldn’t be forced into taking his case. Why then should a baker be forced to make a wedding cake for two guys? If it violates his convictions?

                      The convicted rapist, now charged with another offense, is legally entitled to a defense. And, he is technically innocent until proven guilty. The gay guys want a wedding cake, also perfectly legal.

                      Personally I think the baker is an idiot. But, he has a right to be an idiot.

          2. You don’t get to pick which cows are sacred.

            But you do. Say Greg Gay from Massachusetts, where same-sex marriage is legal, goes across the pond and meets the love of his life, Harry Homo. Now, because same-sex marriage isn’t recognized by the Federal government, Greg can’t sponsor Harry for a marriage or fiance visa, even though Greg and Harry intend to reside in a state where their marriage would be legal.

            Just some food for though.

            1. HM,
              I’m not sold on federalism as a system. I was referring to the fact that people in general like federalism when it is stomping on an enemies face but don’t like the taste of the boot themselves.

        2. Gay marriage is not interacial marriage because being gay has never been treated like race by the constitution. What is like gay marriage is polygomy. But you will never see court mandared polygamy because polygamy unlike gays is not popular with the elite.

          Gays get their pony polygamists won’t. Why? Because your rights are now whatever the elites and judges think they are. Good luck with that.

          1. I tend to agree with your overall assertion but isn’t the point of the constitution to allow for limited federal control (which is laughable in this modern age of ridiculous federal involvement)? and part of this rational would allow for the federal government in a limited way to address a state’s ability to control its citizens unfairly.

            1. We lost that fight in 1865. The south made some bad choices so the nation can’t have nice things.

              1. Wasn’t that particular fight really lost when Utah decided to compromise in order to join the States?

                1. I had to look up the Utah compromise. From the wiki article:
                  President Zachary Taylor, who, although a slaveowner, had favored excluding slavery from the Southwest.

                  Gee someone with an advantage of free labor doesn’t want to share that advantage with competitors.

                2. Yep, nothing but compromise by Utah
                  “The act disincorporated both the LDS Church and the Perpetual Emigration Fund on the grounds that they fostered polygamy. The act prohibited the practice of polygamy and punished it with a fine of from $500 to $800 and imprisonment of up to five years. It dissolved the corporation of the church and directed the confiscation by the federal government of all church properties valued over a limit of $50,000. The act was enforced by the U.S. Marshal and a host of deputies.”
                  http://en.wikipedia.org/wiki/Edmunds?Tucker_Act

            2. I tend to agree with your overall assertion but isn’t the point of the constitution to allow for limited federal control (which is laughable in this modern age of ridiculous federal involvement)?

              You’re licking the boot. The FF knew full well about limited government and were completely aware of varying notions of marriages.

              How do you conceive of a limited federal government that renders itself sole arbiter and licensor of *marriages* across the country?

              If I substituted the word *marriages* with pretty much any other normal human interaction it would be obviously, even grotesquely, invasive federalism.

              If the goal is to be limited, shouldn’t only ideas like *mass murder* and *brutal oppression* fit?

      2. Reason will happily sign onto to any fascist agenda put in from of them so long as it comes clothed in popular culture acceptance.

        Right once again John. I’m very disappointed in the lack of consistent logic by the only mainstream libertarian site.

        And I’d love for Sullum to define “ban.” Failure of the state to recognize a gay marriage isn’t exactly a ban. Nobody from the state is trying to separate gay men from living with one another or punishing them when they refer to each other as their “husband.” Contrast that ban to a ban on handguns, for example.

        You watch — gay marriage will become the bane of libertarians once they realize they have lost numerous liberties as a result.

        1. It does seem that the recognition of gay marriage has just created a new protected victim class, which can use the power of the state to force people to bake them cakes, cater their affairs, and otherwise violate the right to free association.

          1. That’s exactly what will happen. If you read Ed Seykota’s writings about commodity markets and human nature, you’ll find that things trend in a certain direction, whether you like it or not. The trend is to create new victim classes (as long as they’re not white, conservative or Christian) and to empower them to use the state to force their acceptance.

            And so it won’t be long before churches will be banned from condemning homosexuality, etc. Eric Holder has already authorized agents to attend churches to ensure they aren’t saying things that are verboten. And in Britain, it is a crime to say things which offend another person. This will happen here but will only apply to the “right” offended classes.

            1. Haven’t the Christians with their DOMA act essentially achieved coercion by forcing the federal government to recognize their agenda which rejects flexibility?

              No gay marriage type is out there seeking to use the federal government to END traditional man/woman marriage which is exactly what the Christians hope to achieve in their anti-gay-marriage march into the federal courts.

              1. But Gay Marriage “types” ARE using tye government to,force people to do business with them. Now, I happen to think that’s reasonable; you go into busines, you provide your service or product to eveyone. But I do wonder if the same Usual Suspects who are condemning the bakers and so forth who don’t want to serve Gays would be quite as rightious if we were talking about Blacks who don’t want to serve the KKK.

                1. But Gay Marriage “types” ARE using tye government to,force people to do business with them.

                  I have a major issue with this particular aspect. However I am sympathetic to the reality that gays have been denied a right to marriage by most Christians. Nothing about a gay marriage is going to feasibly affect the reality of Christians who have even gone as far as to insert the government as its own weapon into marriage in the form of DOMA.

                  How in the world can anyone let the Christian community off the hook here for the feds being brought in?

                  1. How in the world can anyone let the Christian community off the hook here for the feds being brought in?

                    This a very immature approach. I wouldn’t want one of my kids to hit the other, but I don’t make an effort to stop the kid who isn’t hitting anyone at the moment. Additionally, my stopping one child from hitting should not be considered approval of the other child’s behavior.

                    I wasn’t in favor of DOMA when it passed. People (both for and against) who asked my opinion regarded me as a sophist.

                    More importantly, this is a Fedgov trap or race to the bottom. Fine, the Christians were wrong to bring the Fedgov in, more Fedgov doesn’t fix the problem and just leaves us with more Fedgov to deal with.

                2. Good point….imagine a black printer who refuses to print a white supremacist poster. Or, a Latino printer refusing to print a leaflet on anti-immigration meetings. The anti-immigration meetings are legal, as would be the white power meetings.

        2. Failure of the state to recognize a gay marriage isn’t exactly a ban.

          This. I’ll add that, *if* a government is to recognize any union between people (gay/straight/whatever), it MUST be deemed a “Civil Union” because that is exactly what it is, at that point. Leave “marriage” out of it and have a meaningful separation between church and State.

      3. Public accommodation laws exist independently of gay marriage recognition. States that have them were already infringing on the right to free association and would be continuing to do so even in a world with no gay people whatsoever.

        1. So because we already have something bad going on let’s just add to the problem?

  2. In other words, like freedom of religion or the right to arms, this is not an issue that should be left to the discretion of state legislators or voters. It is a constitutional exception to federalism.

    Of course, the right to bear arms is in fact left to the discretion of states, and is restricted differently by different states. We have seen that states are under no obligation to recognize, for example, carry permits issued by other states.

  3. Sullum got his mention on The Five yesterday. Kudos. And the two women who were on at the time can get face-wrinkled fifty times faster than normal. I think that’s a fairly non-threatening way to express my contempt for their empty skulls.

    Also, Fox drips with a most base level of outright disdain for the common man the way they reported on the family in Indiana being assaulted by the Hammond Police Department Mafia. “‘We Report- You Decide’ but we’ll just spin this story in favor of thugs we’ll never question because we suck authoritarian balls dry any chance we get.”

  4. The only thing I’ve taken away from the gay marriage sideshow is that government has no business being in the marriage business.

    1. This. Then again, I figured this out 25 years ago.

      1. I only came to that conclusion after reading the comments here. It was a light bulb moment for me.

        1. Same. I hadn’t really considered it at all – hey it was just a part of the social structure – but after reading various viewpoints from the commentariat…well let’s just say it’s another example of government fucking up something it has no business being in, and the only reason they are in it at all is as a (yet another) measure of control.

          1. Get rid of palimony and common law marriage and the government is only nvolved if you choose it to be.

          2. That is why rolling back government is hard. After 10 years it becomes the way things are. Never mind marriage probable predates government by several thousand years.

            1. There is no question marriage pre-dates government (except for morons like Tony) but what defines marriage changes over time and according to local customs. All of which is fine – it is more of an organic structure in that regard and probably as it should be. With government involved it is only about codification, standardization, and control of the populous.

        2. It will never happen. You no longer get a vote in what marriage is. Marriage is whaever judges decide it is. That is the long term effect of these cases. It is tragic comic watching people whose stated goal is to end marriage as a legal institution cheer on the courts declare ita constitutional right. Yeah that will get the government out of it.

          1. Marriage is whaever judges decide it is.

            But who brings the case to judge in the first place? Some of this blame for the invasion of government into the marital contract lies on the socons for their outright refusal to recognize a gay marriage.

    2. About ten years ago a Canadian Prime Minister suggested the same thing. He felt the state should simply write a statute regarding the legal aspects of marriage, vis a vis common property etc. And, this would be called a ‘domestic partnership arrangement’. Furthermore, he said any # of people could be involved, or as an example he said, an elderly brother and sister might wish to live together and jointly share their assets and be able to pass their pensions to the survivor.

      All other aspects of marriage would be left up to individuals and churches with no interference from the government.

      Very thought provoking. Completely ignored by virtually everyone though.

  5. Care for some of this cheese, Bob?

  6. Dude that is why we roll with the punches.

    http://www.Ano-Web.tk

  7. “If there ever was a time when federalism was a viable approach to gay marriage, Sullum writes, that time has passed.”

    In other words, the states wouldn’t give in on gay marriage so Boss Federal Judiciary is getting their minds right.

    1. I’m shakin’ it boss!

    2. “What we have here is a failure to communicate.”

  8. Google easily yields some interesting Reason articles.

    Let us get into the wayback machine and go to the long-ago era of March 2013. Here’s Damon Root:

    “But Windsor is not just an equal protection case; it’s a federalism one as well. That point was driven home earlier this month when a group of prominent constitutional scholars, including Ernest Young of Duke Law School and Randy Barnett of the Georgetown Law Center, submitted a powerful friend of the court brief attacking DOMA for exceeding the proper limits of federal power and trampling on legitimate state authority. “States derive the power to define marriage from their police powers, but Congress has no such power,” the brief holds. “Nor can Congress justify DOMA under the Commerce, Spending, or Necessary and Proper Clauses.” In short, “Congress has no legitimate interest in defining marriage because it lacks enumerated power to do so.”

    “If that sounds like the sort of argument the Supreme Court’s conservative members often make, it’s because they do. The federalism brief is tailor-made to appeal to right-leaning advocates of federalism.”

    https://reason.com/archives/201…..he-defense

    1. Won’t you come into my parlor, said the spider to the fly – Damon Root urges Justice Clarence Thomas to embrace federalism and oppose DOMA:

      “But just as important, Thomas has a tendency to break with the Supreme Court’s conservative bloc when federalism principles are at stake in a case that is otherwise seen to advance a liberal political agenda?which is basically the Defense of Marriage Act controversy in a nutshell.”

      https://reason.com/blog/2013/03…..-of-marria

    2. Someone should have pointed out to Mr. Root that DOMA was exactly an enumerated power under the “full faith and credit” Section (Article 4, Section 1) whereby “the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.”
      IOW, Congress is empowered to decide what subject matter States shall extend their full faith and credit to other States.

  9. The end goal needs to be liberty, not federalism…many (most?) matters are better off handled at the local or state level, but states shouldn’t get to pick and choose regarding the equal rights and treatment of citizens before the law.

  10. “Bob Barr, the former Georgia congressman who wrote the Defense of Marriage Act (DOMA) in 1996, later apologized for it, saying it embodied “one-way federalism,” protecting “only those states that don’t want to accept a same-sex marriage granted by another state.””

    This see to mean that, under DOMA, states can refuse to recognize opposite-sex marriage. Was that his point?

    1. When words are many, transgression is not lacking, but whoever restrains his lips is prudent.
      Proverbs 10:19

      1. Meaning, so many opinions have been expressed for federalism and for gay marriage, that they’re bound to eventually be logically inconsistent.

  11. Libertarians have always took the position that the government shouldn’t sanction marriages. I don’t agree with that position but the position makes a valid point. That point is that government marriage is based on a bargain of coercion. Government marriage allows the goverment to control the terms of married couples’ relationships. With government marriage you can’t break up without a judge agreeing, you can’t sign a binding agreement to divide your property or children in any way the government doesn’t like. You can but if one side backs out no court will enforce your agreement. Marriage and family law is about the government deciding the terms of private associations. And Libertarians have consistently opposed that.

    In return for agreeing to that coercion, couples get the right to have the government use the power of the gun to force everyone to recognize their union. That is the bargain of government marriage; you live by the terms the government mandates and in return the government forces everyone to recognize your marriage. And it is a bargain that thanks to common law marriage every is forced to take. You can’t opt out of it even by not getting a license.

    1. Before gay marriage, gay couples lived under the legal scheme libertarians would like everyone to live under. Since the government didn’t recognize their relationships, they were free to make them under any terms they liked but also were unable to force anyone to recognize them. Along comes gay marriage and gays now are demanding to get in on the bargain that Libertarians have always condemned as wrong and coercive.

      One would think that libertarians would have answered this by saying “no, it is bad enough that we have all of this coercion going on with straight couples, we don’t need to now make all couples a part of the problem”. But nope. Libertarians were too blinded by the culture war and blinded by sticking it to their SOCON enemies to do that. Instead they not only bought into gay marriage, they decided that it was a constitutional imperative to require every state to have state sponsored gay marriage. Think about it, what is gay marriage doing for gays other than giving them the ability to force people to recognize their unions and submitting themselves to government control over the terms of those unions? I am not seeing how the pro liberty position here is requiring all states make a bargain of mutual coercion with gay couples.

      1. One would think that libertarians would have answered this by saying “no, it is bad enough that we have all of this coercion going on with straight couples,

        You are over-simplifying our complex society, John. There isn’t a Libertarian in existence that believes the government has any business being involved in marriage. Period.

        But as it has stood for over a century the government WILL nullify any marriage that is not expressly defined by law. You know this. We all know this.

        Who initiated the original law? What entities help pushed big government INTO the business of regulating marriage? Religious groups. Pure and simple.

        In order to compete gays have no alternative but to turn to the same entity religious groups have used for over a century to impose their will on the populace.

        Libertarians can hate the prospect here of further federal involvement but why can’t it at least be understood from a gay perspective?

        Christians are about tyrannical control over marriage and they have forced their marital views on a diverse culture for over a century and gays have no alternative but to become part of that tyranny, unfortunately.

        1. This is stupid, on steroids.
          Government involvement in marriage comes in to play on the dissolution – if one partner doesn’t agree to the terms of same, the force of government is used to make them – and religions had ways to deal with this, the ultimate punishment meted out to a disagreeing partner being expulsion from the religion, at a time when such would have meant exclusion from society.
          It was when secularism became accepted enough that religious condemnation wasn’t enough to force a disagreeing partner to accept the terms the religion had set down, that government became necessary to enforce the terms, and, of course, government then got involved in what those terms would be.

      2. Plenty of libertarians would consider removing straight marriage a better option than adding gay marriage, and they routinely say so.

        But it isn’t usually on the table, and of the options remaining, equality is the better option.

        I mean, I’m sure we would rather everyone get MRAPS, body armor, and military weaponry for fun, but if the only options are “no one gets them” or “every podunk cop in the US gets them, but no one else”, then equality is the better option. Freedom tends to be functionally similar to power egalitarianism.

        1. Plenty of libertarians would consider removing straight marriage a better option than adding gay marriage, and they routinely say so.

          Sure they would. And why would they do that? Because they see it as a bad thing. How is the solution to a bad thing extending it to others? Straights live in the government camp known as marriage and Libertarians want to free them but before they do that they want to make sure gays get thrown in the camp with them. Yeah, that makes sense.

          1. Are you married?

            1. I can’t speak for John, but when I got married and had to pay my 50 bucks, or whatever it was, it left me with a bad taste. Why does the government get to say whether I can form a private contract and why does it dictate the terms and why do I have to pay for this racket? I didn’t have everything fleshed out in my mind at the time, but actually, I can probably trace the beginning of my libertarian journey to that moment.

              Of course, Captain Obvious would say that anywhere there is licensing there is exclusion. The only logical pro freedom position is to abolish licensing rather than include an extra (single) group.

              1. I don’t understand–who pointed a gun at you and forced you to get married? Who is herding John into the government marriage camp?

                I don’t want to get married and I find the concept a little stifling and old-fashioned, but however horrible marriage is, it has to be available to straight and gay people equally. This debate isn’t really about marriage but equality under the law.

                1. I don’t understand–who pointed a gun at you and forced you to get married?

                  No one pointed a gun. But, my faith being what it is, I needed a marriage license before the priest would marry us. I expect the church organization doesn’t want to be seen as doing anything that might be construed as running against the law.

                2. This debate isn’t really about marriage but equality under the law.

                  Then the ‘Are you married?’ question above isn’t relevant. Moreover, your irrelevant question above is biased in the assumption that there is zero barrier to unmarriage or that he had absolute freedom and knowledge when entering into the marriage.

                  If it became cheaper to be unwed in the eyes of the law, you’d better believe the wife and I would file the paperwork tomorrow. If a judicial decision came down nullifying all marriages tomorrow in the name of equality, you’d get no complaints from us.

                  If you put us in a government-mandated group with our homosexual neighbors but not our open-marriage neighbors and our serially-monogamous neighbors or our otherwise domestically committed but not strictly sexually-defined neighbors, please don’t invoke the false notion of equality.

                3. No, the government forces you into a marriage straight jacket if you live with someone. You are not allowed to live with someone under terms both of you accept.

                  Common property laws and common law marriages have forced all of us to adhere to a government designed form for us to fit our various relationships in.

              2. “Why does the government get to say whether I can form a private contract and why does it dictate the terms and why do I have to pay for this racket? ”
                Because government is who you will run to if things don’t go as you had expected and your partner refuses to accept what you consider reasonable terms for the dissolution, And only government has been granted the force required, sometimes, to enforce what accommodations are decided upon.

        2. Plenty of libertarians would consider removing straight marriage a better option than adding gay marriage, and they routinely say so.

          And 5-10 yrs. ago, you got labeled a bigot or fundy for saying it. Now, you just get a look like you’re some geriatric invalid saying people should be allowed to own slaves.

      3. But as it has stood for over a century the government WILL nullify any marriage that is not expressly defined by law. You know this. We all know this.

        Not recognizing is different than nullifying. Gays were married before this. They were free to do whatever they liked. They just had to sign a contract if they wanted the government to enforce it. No court ever “nullified” a gay marriage. Courts just said “no you can’t get in on the terms of the government coercion of your relationship” That is it. You making an argument against the sodomy and cohabitation laws. And those laws are gone.

        In order to compete gays have no alternative but to turn to the same entity religious groups have used for over a century to impose their will on the populace.

        Compete at what? The ability to stick it to their enemies? That is ridiculous. Gays as a good are better educated and have a higher average income than straights. How are they not competing? Moreover, even if they were not, isn’t the solution to that applying the CRA to them? And last I looked Libertarians objected to that as well.

        1. Gays were married before this.

          They were tolerated- not married in the ‘traditional’ sense.

          They just had to sign a contract if they wanted the government to enforce it.

          Again. What is ‘traditional’ about this for people who wish to be seen as a normal part of society? I’m one who shuns traditionalism and normalization but I fully recognize the desire of religious people to seek traditional routes- which they have unfortunately achieved through tyrannical government and by doing so have set an example for others to follow.

          Compete at what?

          Legitimacy.

          The ability to stick it to their enemies? That is ridiculous.

          John, which group has denied the other the right to a ‘traditional’ marriage through federal law that explicitly recognizes marriage as valid only between a man and woman?

          1. Again. What is ‘traditional’ about this for people who wish to be seen as a normal part of society

            Yes, that is the goal. And that is what gay marriage is about. Using the power of government to force people to accept gays.

            How can you say that using the government to force people to accept others is in any way a Libertarian or pro freedom position? You are right. The whole point is to use the power of law to make it illegal for anyone not to accept gays. That is a great position I suppose if you are Tony. It is not however a very good position for a libertarian to take.

            1. Using the power of government to force people to accept gays.

              Nope. Never had to happen. All that had to occur was for the religious types to SIMPLY leave gays alone and allow them the legitimacy of traditional marriage. That’s all. But, nope. Belief trumps an open society, right?

      4. Libertarians can hate the prospect here of further federal involvement but why can’t it at least be understood from a gay perspective?

        Sure. Lets do that. Before gay marriage, gays were free from government coercion and could form whatever unions they liked. With gay marriage they lose that and are stuck living under the same coercion straights to. All gays have gained is the ability to force people to recognize their unions.

        What you are saying is that you want gays to be able to do the same wrong thing that you have spent decades trying to stop straight couples from doing. Your “pro freedom” position boils down to, “I think more couples should be able to use the power of the gun to force others to recognize them”.

        Again, that is not very Libertarian. But it does go after the Religious people you hate and that seems to be what Libertarianism is all about these days. I

        1. All gays have gained is the ability to force people to recognize their unions.

          Yes, this is called traditional marriage. THAT is the crux of the battle. Christians do not want gays to be viewed as remotely normal so they are not allowed the title of ‘traditional’ in their unions.

          What you are saying is that you want gays to be able to do the same wrong thing that you have spent decades trying to stop straight couples from doing.

          I am stating that gays have not been given the choice to avoid utilizing federal power as a tool of compliance. I vehemently disagree with BOTH gays and religious groups doing this but I am forced to accept it since reality trumps idealism.

          1. I am stating that gays have not been given the choice to avoid utilizing federal power as a tool of compliance. I vehemently disagree with BOTH gays and religious groups doing this but I am forced to accept it since reality trumps idealism.

            Your position then boils down to “even though I know it is a wrong, I want gays to be able to do it too”. Again, your hatred of your enemies in the culture war is out weighing your dedication to freedom.

            And don’t forget, gays are in a real sense less free because of this. They lose the freedom to determine the conditions of their unions and only gain the ability to coerce others. This whole thing is one big loss of freedom on everyone’s part. Gays are no longer free to have the unions they choose and everyone else is no longer free to not recognize those unions. No one is more free and everyone is less free, unless you count the ability to force others to do what you like as “freedom”. And I don’t do that.

            1. You’ve made tremendous efforts all over this site to protect your own religious interests on this topic as if they are so sacred as to be immovable but why don’t you ever look at the rigidity of your religious world view?

              You won’t do it once. I’m neither gay, religious, or a traditionalist- but at least I make an attempt to look at this issue from more angle than one. Why is this so hard for you?

              There is no such thing as PURE Libertarian, gay, Christian, or atheist political reality. There has to be compromise until improvements can be discovered.

        2. Gays are still free not to get married if that’s what they choose. All that’s changing is they are being given the same rights as straight people. I’m sorry that seems to upset you so very much.

          1. “… being given the same rights …”

            Given rights?? This is a common misconception I see repeated everywhere: confusing constitutional rights with privileges granted by government.

            There’s no constitutional ‘right’ to marriage. More importantly, in the context of this discussion, there’s also no constitutional ‘right’ to be treated in a special manner, legally, due to one’s marital status. That special legal treatment is the real issue here, and involves a civil PRIVILEGE (not a right) invented, legislated and enforced by government. State governments have the authority and power, per the Tenth Amendment, to legislate in this area. The federal government is granted no such authority by the States.

            So what you’re argument asserts here is two-fold:

            First, you’re asserting that governments should be forced to grant the same PRIVILEGES to gay couples as heterosexual couples have been granted in the past.

            Second, you’re asserting that the federal government has the authority to force States to grant these privileges.

            These assertions miss the larger issue: the real solution here is to recognize that civil affairs are the purview of the States, and that each State has authority to legislate on such issues as its Citizens decide. Even with the offensive 14A in place, the federal government has no business dictating on this topic because there is no constitutional right at issue.

            http://bit.ly/1p6qQml

            1. The federal government is not sticking its nose into the traditionally state-level issue of marriage (well, not since DOMA). Marriages will remain the purview of the states. But the states are not allowed–yes, because of that odious 14th Amendment (?)–to treat straight people and gay people differently under the law unless there’s a good reason. So disputes on these grounds have arisen and courts have decided, nearly unanimously, that it is indeed unconstitutional for states to make laws that discriminate in this way. You lost, you deserved to lose, and you should probably figure out how to get over it.

              1. Your assertions make no sense. Of course, “You lost” makes clear that you’re far more interested in your chosen tribe “winning” than in actually forming a rational position on this issue.

                Your 14A argument fails as soon as you realize that the States are left perfectly free to make laws that discriminate in all sorts of ways. The fact that most States treat married and single Citizens differently under the law is just one example.

                Meanwhile, good job at ignoring the larger point – at least, that is, if you’re trying to represent a libertarian view here (I suspect not). Sarcastically (?) referring to the 14A as ‘odious’ reveals that you don’t understand how it was “deemed” ratifieid, or how it has been abused and, ultimately, led to extra-constitutional federal overreach in virtually every aspect of every American Citizen’s life.

                1. Very happy to see someone else who holds the 14th at the same level of disgust as do I.
                  It was a terrible addition to the Supreme Law of the Land, deemed ratified in the highly emotional aftermath of a terrible war, to poke a stick in the eye of anyone who had the temerity to think the Declaration of Independence expired upon the writing of the Constitution, and that has been misused/misinterpreted to the lasting detriment of American society.

  12. How about we propose a trade; full faith and credit applied to Gay Marriage in return for the same on concealed carry for guns.

    1. You mean apply the document as written? Never. Doing that might mean the wrong people benefit from it or the right people might not get something they like.

      The way to do this was let states pass whatever laws they want but then actually enforced the full faith and credit clauses and the P&I clauses to keep states from not recognizing valid gay marriages from other states. The results would have been effectively the same but it would have been accomplished legally and had the added positive effect of getting the courts to stop ignoring the P&I clause.

      Gay marriage should have killed the slaughterhouse cases. Instead it killed the 14th Amendment by making a license for judges to mandate anything they like in the name of it being a “right”.

      1. States have no business interpreting the 2nd amendment in clever ways that literally impinge on said right.

        1. Sure and they don’t need to do that with the 14th Amendment either. And interpreting the 14th Amendment to guarantee the state recognize something that was a crime when the amendment was passed is certainly impinging on it.

          1. I don’t agree with criminalizing the behavior of religious bakers who refuse to create a cake for a gay married couple. I’m disappointed in the gay couple who took the approach they did in this situation.

            1. I don’t agree with criminalizing the behavior of religious bakers who refuse to create a cake for a gay married couple.

              Doesn’t matter if you agree with it. You are supporting a legal regime that makes it inevitable.

  13. But they can’t leave it to the states without insisting that the federal government get out of the marriage and family law business. Since the USSC refused to hear appeal of P.O.P.S. v Gardner by the 9th US Circuit Court of Appeals (1993), marriage and family have been politically defined arbitrarily controlled elements of the public welfare system. In that context, there are no individual rights and “due process” consists only of equal treatment.

  14. Well, as Reason’s financial backers “believe” in gay marriage for personal reasons, the publication must serve the master. That’s not a bad thing, as we may continue to argue the point, a point lost on more Progressive minds. Fortunately the Koch brothers have their priorities straight. Freedom of speech first, gay marriage second.

    “you can’t always get what your want, but sometimes you get what you need.” Gratefully.

  15. Haven’t read through all the comments yet, but my position is as follows:
    I do not believe the federal government was ever explicitly given the power to define, let alone recognize “marriage”. I do not believe that the government, at any level, should be in the practice of defining personal relationships. That said, I also believe in supreme law. I believe that the documents that founded the Federal Government and that of the respective States are supreme law in their respective areas of power. Hence, if a State, such as my own, defines “marriage” as an amendment to the document that created it, then that’s the way it is. It requires a State level Constitutional amendment to change.

    (P.s. To all who may respond to this, be gentle. I am no legal/historical expert. I am merely going on principle of divided sovereignty & delegated powers.)

    1. US constitution trumps state constitutions. The federal government is not newly recognizing or defining marriage. It is recognizing a violation of the 14th Amendment in state laws/constitutions.

      1. 14A, Section 1 reads as an affirmation of the supremacy clause, which only applies to areas in which the federal government has been delegated authority. With that in mind, re-read my comment.

    2. Rev, I think the fundamental disconnect here is that generations of Americans – including many (most?) self-described libertarians – have been indoctrinated by a federally-controlled, compulsory education system to believe that there is no area where the federal government can not legislate. Today, dual sovereignty, State sovereignty, balanced federalism and limited, delegated federal authority are just so many obsolete, ‘fringe’ notions with no relevance in our “advanced”, “enlightened” age.

      Originally, the idea of Supreme Law – at least in the context of the Constitution – included the premise that the general government’s authority was strictly LIMITED in scope.

      That premise was destroyed by the never-duly-ratified 14A, which effectively conscripted the Citizens of every State into a “national citizenry”, and used that act of conscription to rationalize the “equal protection” RACKET that the federal government has become, since. This was Hamiltonian imperialist statism, as implemented by his acolytes (Clay, Carey, et al.) and those who sought to profit from the concentration of economic and political power, as well as that of civil authority, in D.C. (Lincoln and his patrons). This was made possible by the destruction, through military force, of all political opposition to the Republican agenda of 1860.

      As a result, the Free Marketplace of Ideas physically manifested by the U.S. up to that time – the libertarian ideal if there ever was one – was destroyed.

      1. As a result, the Free Marketplace of Ideas physically manifested by the U.S. up to that time – the libertarian ideal if there ever was one – was destroyed.

        Yes, this. While Lincoln shares equal blame for killing the original Union, it was the South that burned the figurative body with the taint of being pro-slavery.

        1. One other thing the federally-controlled, compulsory education system has achieved is to implant in most Americans the same knee-jerk reaction to any issue involving Lincoln: demonizing the South because of slavery. This isn’t a criticism of your comment, it’s an observation of the American mindset.

          Here’s the thing. Lincoln was “pro-slavery” too – at least in his actions. So was the Constitution, which acknowledged it as a State-level issue. So was NYC, as were many other northern regions. So was the Congress of 1861, which voted to protect the institution of slavery in perpetuity (an act Lincoln openly acknowledged with no opposition in his First Inaugural Address). Lincoln could have banned slavery in D.C., Tennessee and other places under his control, but didn’t.

          Lincoln’s illegal, unnecessary war destroyed the Republic, and Fundamentally Transformed it into a collection of conscripted States – a de facto empire – ruled by an oligarchy in D.C. through the lingering threat of military force and a series of acts which concentrated political and economic power, as well as civil authority, at the federal level. The universal reaction to this reality among Americans is… “but… SLAVERY!!!!!” It’s no different from the response to every criticism of Obama’s policies… “RAAACISM!!!!” Both are designed to shut down discussion of the real issue: the ongoing destruction of the Republican Form of Government guaranteed by the Constitution.

          1. All anyone needs to remember is the victor writes the history. That is why the civil war has been portrayed as a fight against slavery. The Northern historians have hidden for decades that even people living in the North saw Lincoln’s sending Federal troops into Virginia as an invasion of another country. People today do not understand that prior to the civil war each “state” viewed itself as an independent nation who by agreement was working with others for the common good. The end of the Civil War clearly establish the Federal government as master of the states. Prior to the war, the states held power over the Federal government which is why slavery remained such a divisive issue for so long. The Feds did not have the authority to abolish it, only each state.

            1. So very, very true.

              The critical takeaway from this, IMHO, is the importance of understanding how our perception of our own past – as distorted by generations of federally-controlled, “accepted history” – has been tailored to promote blind acceptance of the relentless expansion of federal overreach, and of the Leviathan Lincolnite federal state.

              Sometimes I get the impression that folks who demonize the antebellum South, or who attempt to argue in support of Lincoln’s serial crimes against the Constitution and the American People, are really arguing against taking responsibility for addressing the damage caused by his decisions and actions (and, of course, those of his minions, patrons and like-minded, statist ilk).

        2. it was the South that burned the figurative body with the taint of being pro-slavery.

          A cursory, objective glance at history will tell you that very few people were ardent abolitionists. Also, many were such for the sake of preventing free, white labor from competing with salve labor. This is why newly created States that were “free” States were founded as such: “Free States for free, white labor.”

          Lincoln was a lifetime racist who had no intent on interfering with the institution until it became useful politically (try reading his first inaugural address). At the outbreak of hostilities, slavery was, at best, a tertiary issue. Furthermore, do not discount States like VA, which only voted to secede following Lincoln’s (illegal) call on it to raise an army to invade the other seceding States (it initially voted to remain in union.).

          1. Interesting to me is slavery would have fallen apart under its own weight. And, I’m not sure if it wasn’t an incredibly inefficient way of getting labor from people it wouldn’t still be legal. But, since it is, we will never know.

            How many people would not now today if they were guaranteed food, clothing, shelter, and medicine in exchange for not much work and all they would have to do is give up a certain amount of personal autonomy would not do so.

            Slavery gets little work out of the enslaved, and it costs you as much to keep them as it does to give people minimum wage. In essence slavery gives me a big responsibility to the slave, it is self-inflicted, since if I don’t feed them, house them, and keep them healthy, I lose their labor, and gives me in return not very much. Who would do anything more than the absolute bare minimum under those circumstances? The slave is of limited economic usefullness, but eats and needs a house, etc.

            When land is essentially free slavery somewhat works, but once land has value, then slavery’s inefficiencies makes the cost of using it more than the income created by it.

            1. How many people would not now today if they were guaranteed food, clothing, shelter, and medicine…

              Discounting the welfare state, I’d imagine that some would. But, the principle is that it would be voluntary. It would, in effect, be employment and what you mentioned would be the “wage” (I presume you mean that people could end this arrangement at a time of their choosing.)

              Slavery gets little work out of the enslaved

              Incentives matter. Incidentally, this was a factor in the economical decline of slavery along side technological innovation.

          2. many were such for the sake of preventing free, white labor from competing with slave labor. This is why newly created States that were “free” States were founded as such: “Free States for free, white labor.”

            Absolutely. I mean, the North should have been tainted with only recognizing 3/5ths of a black person. Unfortunately, and as my prior comment was focused, in the court of public opinion that’s not how it shook out. (Also, it’s not hard to argue that enslaving someone is definitely worse than seeing them as less than human)

            At the outbreak of hostilities, slavery was, at best, a tertiary issue.

            While, I’m sure that we agree that the North definitely did not begin the march toward hostilities with intent to end slavery (and the Union soldiers definitely didn’t fight for that cause), I do have to take issue with this. While I haven’t read every single one, slavery is the primary reason given in every article of secession that I have read. (With the slightly notable exception of Texas which mentioned continental disconnect due to other seceeding states followed by slavery) I do understand that it’s far more complicated than that, but that’s the reason that they all chose to formally give (and I haven’t seen a compelling reason not to take them at their word, especially given the protective wording in the CSA constitution), so I’m afraid that I can’t see it as merely tertiary.

            1. slavery is the primary reason given in every article of secession that I have read.

              You should do some more reading. I’ll recommend The Real Lincoln (basically, and economic dissertation) & Northern Editorials on Secession (articles written at the time, detailing northern newspapers opinion on the matter, largely in support). There are plenty more, as well.

              1. I think he may have been steered towards the actual declarations of secession, where the seceding states used the descriptive of being “slave holding” as a way to separate themselves from the “free” ones and extrapolated that into their secession being all about slavery.

              2. I think he may have been steered towards the actual declarations of secession, where the seceding states used the descriptive of being “slave holding” as a way to separate themselves from the “free” ones and extrapolated that into their secession being all about slavery.

      2. AGoyAndHisBLog|10.8.14 @ 11:52AM|#

        Rev, I think the fundamental disconnect …

        I agree. I, unfortunately, labor under the idea of original intent. I am, however, aware of the reality of politics, political history, and education in the US.

        1. Ditto.

          Sadly, I think too many of the folks who are AWARE of the reality are also RESIGNED to the reality.

          That resignation can lead to rationalizing inaction, and it also emboldens the “You lost” crowd, who are focused on the tribal aspects of politics as an extension of their own ego, sense of self-esteem and individual locus of control.

          However, if history teaches anything, it’s that something which can’t go on forever, won’t. This is no more true than in the case of the increasingly out-of-control federal oligarchy.

          At some point the self-aggrandizing federal infrastructure is going to collapse of its own weight. Until then, State-level efforts focused on (1) shoring up legitimate, competent, State-level governance and (2) bringing the federal oligarchy to heel through constitutional efforts, can only be a good thing. In the ideal case, they achieve the latter goal and in the worst case – federal default and collapse – they serve a goal of building a fallback structure that will be crucial to the nation’s future.

  16. If the ‘consensus’ libertarian view is represented in this article, then I’ll pass, thanks.

    Because if libertarian ideology doesn’t include limited government, then it is meaningless. Nowhere is the general government authorized to pass or enforce legislation which discriminates based on marital status, and nowhere is it delegated the authority to force States to recognize ANYTHING associated with marital status.

    Sullum citing the 14A is the tell here. Of all the fascist, statist stunts pulled by the federal oligarchy established during the 1860s, this never-duly-ratified Amendment is the most egregious. It’s nothing less than a conscription of all States’ Citizens into a “national citizenry”, which is then used to rationalize the “equal protection” racket the federal government has become ever since, engaging in usurpation of every level and form of civil authority – which is the rightful purview of the States – along the way. This issue is a prime example.

    Contrary to Sullum’s federally-engineered delusion, this is PRECISELY the sort of issue that should be left to the discretion of State legislators or voters. Don’t like your State’s laws? MOVE. That’s the physical manifestation of the Free Marketplace of Ideas the Constitution was intended to facilitate, and which was finally destroyed by Hamiltonian imperialists in 1868… and which apparently stands as an example of “progress” in Reason’s view.

    http://bit.ly/1p6qQml

  17. Saw someone on a morning show arguing that conservatives are taking the coward’s way out by retreating to a libertarian “government shouldn’t be involved in marriage” position. Either keep up the fight or admit defeat. Though watching Tony Perkins and his ilk choose to keep up the fight is a sad spectacle. But in a delicious way.

  18. I’m stunned. I joined just so I could complain about this post. States rights is clearly a more libertarian position than federalism. I’m shocked at this post, and I’m suspecting Jacob is simply trying to stay on the the “right” side of the movement, rather than standing tall with principles Reason is supposed to represent. I understand. Its nice to get invited to those tier 1 parties…

  19. The only issue the courts have been addressing and should address is related to the equal protection clause. Opponents of same sex marriage argue the court is “redefining” marriage where as supporters claim the court is “sanctioning” same sex marriage. In truth, the courts are doing neither. It is insane to argue that because you have a moral objection to someone’s lifestyle that justifies denying the same legal protections as others in similar, long term relationships. However, it is equally insane to equate being ensured equal legal standing as a moral declaration that society must accept your lifestyle without question or concern. Marriage is a RELIGIOUS sacrament, not a legal one. Churches have and will continue to define what is an is not a marriage. The government needs to stay out of any discussion of morality.

  20. Equality is one thing, special treatment is another. Equality, to me, would be that everyone is able to be married, it is not a right, many people never get married, but then there have to be rules like bigamy, polygamy is illegal and people marrying the same sex was always illegal too. It’s not a good thing for society, the parents and the children to have to deal with. Teaching them in school about it is like indoctrinating your children to be deviants which is abnormal and then teaching them about masturbation at 5 years old, where did that come from and sexual positions in grade school because you want gays to be accepted, that’s insanity.

    1. wow. just wow.

      so there are kindergarteners being taught about masturbation because gay people want to have the same rights and opportunities that straight people have?

      do they teach grade schoolers heterosexual sex positions? if so, then how is teaching them homosexual sex positions making it worse? i don’t remember learning sex positions from teachers in sex ed classes.

  21. so many libertarians speak out against gay marraige because the government shouldn’t be involved in marraige. If they truly believe this, why are so many straight libertarians married? Shouldn’t they just be cohabitating?

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