The Libertarian Gay Marriage Paradox

How opening up marriage regulations will help make the case for eliminating them

The Supreme Court will be pondering the future of gay marriage recognition in the United States soon. That much is a given. They may decide (or will have decided) at some point today whether to take up a constitutional challenge to California's Proposition 8, the voter-approved ban keeping the state from recognizing gay marriage. They may also decide to take on one of several challenges to the Defense of Marriage Act (DOMA), which prohibits the federal government from recognizing same-sex marriage contracts from states where it is legal. Because it is taking several conferences for the Supreme Court to make any announcements regarding the cases before them, it seems likely they'll be taking up at least one of them. A DOMA case at least seems likely. If the case were about the federal government refusing to acknowledge state-stamped contracts in a matter that wasn't also a part of a current culture conflict, the constitutional concerns would be pretty clear.

Discussions about gay marriage among libertarians or libertarian-leaning conservatives tend to very, very quickly lead to a simple conclusion: "The government should get out of marriage entirely." While this is a compelling conclusion, it is important to recognize that it is indeed a conclusion, not an argument. Getting the government out of marriage is an outcome. But the observation does nothing about bringing our culture any closer to a point where marriage is actually a matter of private contract. In its activism in support of gay marriage recognition, the Human Rights Campaign identified 1,138 federal benefits, rights, and protections granted on the basis of marital status. That's just the federal stuff. State policies add even more. Getting the government out of marriage is not something that's just going to happen someday. Like libertarian arguments about shutting down various government bureaucracies, such as the Department of Education or the Environmental Protection Agency, it's going to take a lot of work.

There's a paradox here: The best way to create a framework that ultimately leads the government out of the marriage business is to open marriage up to more people. Opponents of gay marriage recognition are not arguing for smaller government; quite the opposite. The argument for keeping gay couples (and yes, polygamists of all orientations) from getting the same government recognition as monogamous heterosexuals is justified by conservative Nanny State arguments that we need government to make certain that humanity continues to procreate. There is, they claim, a legitimate state interest in making sure the human race does not die off.

Now, whether people who are presenting this argument legitimately believe gay marriage will somehow interfere with heterosexual procreation, or if they're actually trying to find some sort of scientific-sounding argument to justify a personal or religious discomfort with gay families, is worthy of note, but probably not relevant. This is the anti-recognition argument in play in the courts. Last week, Federal Judge Robert C. Jones stated as much in a ruling that Nevada could legally outlaw recognition of gay marriage in the state. He wrote in his ruling, "The perpetuation of the human race depends upon traditional procreation between men and women." Perhaps cognizant that there's little evidence that one's sexual orientation bears any correlation to one's access to marriage recognition, he took it further, explaining that recognizing gay marriage would cause heterosexuals to value the institution less and might "enter into it less frequently, opting for purely private ceremonies, if any, whether religious or secular, but in any case without civil sanction, because they no longer wish to be associated with the civil institution as redefined, leading to an increased percentage of out-of-wedlock children, single-parent families, difficulties in property disputes after the dissolution of what amount to common law marriages in a state where such marriages are not recognized, or other unforeseen consequences."

That is to say, Jones' fear is that if the government starts recognizing gay marriages, heterosexuals will realize they don't need the government to tell them how to have a family.

Do libertarians need a better argument than that to support gay marriage recognition? How about those 1,138 benefits and protections the Human Rights Campaign mentions? There are 179 tax provisions that take marital status into account—everything from tax exemptions for health insurance contributions to tax credits for children. Opening up marriage highlights how much regulation the government's "stake" in overseeing our nation's breeding habits has brought forth. How many federal employees are responsible for overseeing the application of all these family-based regulations? How much money could we save if the government abandoned its role in determining what constitutes a family and the various subsidies and socially engineered regulations it has wrought?

Not that this is necessarily the goal of gay marriage proponents. Obviously, many of their arguments are for access to these same government benefits. And no doubt one of those "unforeseen consequences" would be the government burden that results from millions of Americans now qualifying for perks they didn't have access to before.

That should make the argument in favor of gay marriage recognition even more compelling to libertarians. If gay marriages end up damaging or breaking our labyrinthine tax code, we should be cheering it on. Choke on all those tax credits, Leviathan! Failing that, the more complex the tax code, the more unfair it is and the more it favors certain select classes. Even if the federal government can bear the burden of expanding the base of its benefits, at least the distribution will then be more evenly applied to the population.

Assuming the Supreme Court takes up a gay marriage case, rest assured whatever ruling opposes increased recognition will not be written with an eye on either increasing human liberty or reducing the scope of the government. The best way to show that the government's claim that family structures need to be regulated by the state is nonsense is to throw the doors wide open so everybody can see how silly it is.