Can Rand Paul's Positions on Abortion and Gay Marriage Be Defended on Libertarian Grounds?

Yes, but you have to try pretty hard.


Fox News

Rand Paul's recent comments about gay marriage are often cited as evidence that he is kissing up to social conservatives, which is fair enough. But his position is more nuanced than some of those quotations suggest. Here is what he said on Fox News last month:

I'm for traditional marriage. I think marriage is between a man and a woman. Ultimately, we could have fixed this a long time ago if we just allowed contracts between adults. We didn't have to call it marriage, which offends myself and a lot of people….

I think having competing contracts that would give them equivalency before the law would have solved a lot of these problems, and it may be where we're still headed.

In other words, it's not equal legal treatment of gay and straight couples that offends Paul; it's calling the arrangement "marriage." That suggests he'd be OK with laws that gave a homosexual couple all the rights and privileges a heterosexual couple enjoys and even used the same term in both cases, provided that term was not marriage. This legal status could be called a "civil union" or a "domestic partnership," while marriage would be reserved for unions (including gay ones) blessed by particular religious organizations.

It may seem silly to be so hung up on terminology, but much of the opposition to gay marriage comes from conflating the civil arrangement with "the institution of marriage," which existed long before the government started doling out marriage licenses. That conflation supposedly was what stopped Barack Obama from publicly endorsing gay marriage until May 2012. I don't know if Paul's religious objections are any more sincere than Obama's were, but it sounds like he is open to a policy that would be defensible on libertarian grounds.

Still, Paul is surely wrong that contractual-marriage-by-another-name "may be where we're still headed." Where we are headed, once the Supreme Court rules that the 14th Amendment requires it, is gay marriage in every state. Paul's position that the issue should be left to the states likewise has been overtaken by events.

Paul's opposition to abortion—a stance that seems to be a prerequisite for winning the Republican presidential nomination but also one that Paul shares with his father, who is widely viewed as more consistently libertarian—can be defended on libertarian grounds too, provided you accept the premise that a fetus is a person with a right to life. Two years ago Paul was the lead Senate sponsor of a bill that said just that. The Life at Conception Act aimed "to implement equal protection for the right to life of each born and preborn human person" by declaring that "the right to life guaranteed by the Constitution is vested in each human being."

The point of the bill was to justify national restrictions on abortion by invoking the federal government's authority under the 14th Amendment, which protects "persons" that the bill defines to include fetuses. That approach makes legal sense only if the meaning of the Constitution can by determined by statute—a problematic position for a self-described "constitutional conservative" to endorse. I will give Paul this much: The 14th Amendment is a more plausible source of congressional authority to restrict abortion than the power to regulate interstate commerce, which was the highly dubious rationale for the Partial Birth Abortion Ban Act. Still, the desire to regulate abortion at the national level is hard to reconcile with the federalism that Paul prefers for marriage, drug policy, and pretty much everything else.