I tried to come up with a solid libertarian argument for why the Supreme Court should not have struck down state bans on same-sex marriage (SSM). (By a 5-4 vote, the court [Thursday] morning declared those bans unconstitutional.)
I couldn't do it.
Not that I was hoping to find such an argument. On the contrary, my hope runs in the other direction. But I've seen a few libertarians claim that a pro-SSM ruling would be bad from a libertarian perspective, so I wanted to see if I could make a better case than they have been making. Everything I know about libertarianism says that the government cannot morally exclude gay and lesbian couples from legally marrying, as governments in 13 states have done but will no longer be able to do.
Let's get something out of the way at the start: the state—even if it should exist—should not be involved in marriage. But libertarians who think that this is all that need be said are wrong. To see this, imagine that the government declared that blacks could not use the interstate highways. Would it be enough for libertarians to say that the government should not own and operate highways, remaining agnostic on the particular policy? Of course not, because that's not all there is to the matter. Libertarians should say that as long as the government does own and operate highways, it must not discriminate irrationally or invidiously in their use.
Why is that a proper libertarian position? It is so because libertarians, pending abolition of the state, should want to limit as far as possible its power to commit injustice, to mistreat people or deprive them of their dignity. One way to do that is to eliminate or at least restrict its power to discriminate irrationally or invidiously. Government should not have the power to issue marriage licenses, but when it exercises that power, it should not be free to deny them to gay and lesbian couples. On what libertarian grounds should same-sex couples be turned away from the licensing bureau?
As Steve Horwitz writes: "Classical-liberal principles require the State to treat all citizens as equal before the law." This, he notes, has been one of the aims of liberal movements from time immemorial. Horwitz writes:
Government must treat all its citizens equally, and nothing paid for with tax dollars may involve invidious discrimination. It would be wrong on classical-liberal grounds for a government to refuse to pay Social Security to nonwhites even though we think Social Security is an illegitimate use of government power.
The same is true of same-sex marriage. If government grants certain privileges to those who are married, it must grant them equally to all its citizens who wish to marry. In the same way that prohibitions on interracial marriage were wrong on libertarian grounds, so are the prohibitions on same-sex marriage.
It does not follow, as some libertarians suggest, that under the equality principle, laws that burden one group ought apply to all. The principle is equal protection. If the government imposed conscription on men, it would be unlibertarian to demand that women also be drafted in the name of equality under the law. On the contrary, that principle would be grounds for demanding abolition of conscription.
I've seen it argued that if marriage consisted merely in "negative rights"—rights, that is, against aggression—a libertarian could have no objection to legalization of same-sex marriage. But, the argument goes, since contemporary marriage entails "positive rights" as well—that is, (alleged) "rights" to government-provided benefits—a libertarian should object to extending this tainted institution to more people. That argument seems plausible at first, but I believe it crumbles on closer scrutiny.
This is not to deny that government-provided benefits are available to married couples. According to the Human Rights Campaign:
There are 1,138 benefits, rights and protections provided on the basis of marital status in Federal law. In June 2013, the Supreme Court's decision in U.S. v. Windsor struck down part of the Defense of Marriage Act (DOMA), which excluded same-sex married couples from recognition for all federal benefits and programs. Because of this ruling, same-sex married couples across the country have been recognized for federal purposes for the first time. However, the persistent patchwork of state marriage laws continues to stand in the way of many couples fully accessing the federal benefits they have earned including Social Security and Veterans Benefits.
Perhaps similar benefits are available at the state level.
Let's take an example, the federal Family and Medical Leave Act (FMLA), which requires employers to provide job-protected, though unpaid, leave for qualified reasons. (Some states have similar laws.) Since passage of the law in 1993, FMLA benefits have been extended by the courts to same-sex couples who married in a state that recognizes that status.
Now it is true that mandated family and medical leave coercively imposes costs on employers (and ultimately employees) and therefore cannot pass libertarian muster. It is also true that with this latest Supreme Court decision, FMLA benefits will now apply to more people. But contrary to some libertarians, that is no reason to condemn the Supreme Court's decision. Rather, it's simply a reason to work for the repeal of the FMLA.
Allowing the prohibition of SSM in order to prevent expansion of the FMLA is a little like bombing a village full of innocents to kill a criminal. To avoid one harm, a great deal more harm would be done. And note: it is not married couples who compel employers to provide leave, even if they take advantage of the law. The state is the aggressor. Let's go after it and its impositions directly. Discriminating against same-sex couples does nothing to end those impositions. It simply declares that the benefits are for heterosexual couples only.
Similarly, the prospect of the government's compelling bakers and photographers to participate in same-sex weddings hardly constitutes a reason to ban same-sex marriages. Let's target the actual rights violators and leave the innocent alone.
I have no doubt that some—maybe most—same-sex couples who wish to marry do so because they want the same government-derived benefits that heterosexual couples enjoy. (They like other taxpayers surely believe that they are entitled to a return on the "investment" that their taxes represent.) Most same-sex couples, like their heterosexual counterparts, are not libertarians, and many do not object to government provision of benefits. On the contrary, they see them as signs of citizenship. Thus they reasonably interpret the denial of benefits as a sign of second-class citizenship.
But it's a mistake to think that such benefits are the only things, or even the main things, that prompted the move toward same-sex marriage. (Marriage licensing did not begin in order to provide those benefits, which were later add-ons.) Even if all those benefits tomorrow were extended to unmarried same-sex couples (as envisioned by advocates of civil unions), many of those couples would still want to marry. For most people, a legally sanctioned marriage constitutes a personal and cultural public statement that has no close second as a declaration of love and commitment. Many same-sex couples want to make that statement. They don't want to be civilly united. They want to be married. The word matters. (The court has not redefined the word. The concept marriage has evolved.)
It is insulting and condescending to tell them they ought be to satisfied with civil union and its merely material benefits.
This piece originally appeared at Richman's "Free Association" blog.