This article was originally written by Clint Townsend on June 28, 2011, after New York State’s historic move to extend civil marriage to same-sex couples. Therefore, it does not reflect more recent victories for the right to marry, including Maine, Maryland, and Washington, as well as the 2012 defeat of a proposed constitutional ban on gay marriage in Minnesota.
Shortly before 10:00 pm last Friday, the New York state legislature took bold and decisive action by extending civil marriage to same-sex couples. The bill’s passage was met with hearty cheers and applause. Equality under the law, a cornerstone of classical liberalism, had taken a giant leap forward. While the majority of libertarians have hailed this as a victory for liberty, a unified libertarian position remains up in the air. Some have claimed that a states’ rights approach to gay marriage will solve the dilemma while others believe the best solution is to agitate uncompromisingly for privatization of marriage. With so much disagreement around the means of eliminating state-sponsored discrimination, what then should be the position libertarians take?
Most libertarians can agree in principle that the state, either federally or locally, should play no role in the marriage business. Historically, marriage has been a private institution. In fact, the institution of marriage in America evaded the destructive hand of government for nearly a century before bigoted state legislatures started the practice of licensing marriages in order to prevent post-emancipation interracial marriage. Effectively, licensing was a tool to homogenize culture and prevent socially undesirable people from sharing property, having children and freely contracting with the socially accepted majority. Since that time, licensing has continued to accomplish its stated goal; just see the latest social minority that is subject to its unjust wrath. Currently, state privileges such as tax credits and contract enforcement are dependent on a couple’s legal status. In some instances, state divorce law has made it more beneficial to divorce rather than remain married, thus exemplifying the inescapable unintended consequences that always accompany illegitimate state interventions. Big Government has once again proved to be the fly in the punchbowl. This line of argument against state-sanctioned marriage is one of remarkable uniformity amongst libertarians.
At the same time, libertarians share a broad opposition to government-sponsored discrimination. Currently, libertarians speak out against many such practices, including discriminatory drug policies, affirmative action and of course marriage access. Some, however, have espoused an argument which usually goes like this: Marriage licensing is an illegitimate role of the state, therefore libertarians should only advocate for privatizing marriage, and thus oppose gay marriage because it requires further state encroachment. Once same-sex marriage is legalized, so the argument goes, government is involved in doling out special benefits to two groups – gay couples and straight couples. This argument lacks substance however, because the reality is that government is involved in marriage, and so long as that is true, libertarians should uphold the more pressing concern of equality under the law. This is not to suggest that libertarians should be any less concerned with returning marriage to its original, private roots. Take the example of lawfully segregated schools in the United States which lasted for nearly a century after emancipation. Would it be a reasonable libertarian position to oppose desegregating schools because this would further aggrandize the state? Probably not. The proper libertarian position is to oppose state-sponsored discrimination. Should we continue to push for privatized schooling? Of course, but that does not mean that we cannot push for incremental change in order to further liberty and equality under the law. This applies to both segregation and to marriage.
Some have suggested that a states’ rights approach would best address the issue of same-sex marriage. Such a position is particularly threatening to the libertarian principle of equality under the law. The states’ rights mantra essentially gives us what we have today: many states passing constitutional amendments banning same-sex marriage, while few legalize it. This 10th amendment approach, although often well-intentioned, allows for what libertarian Clint Bolick calls “grassroots tyranny.” Constitutionalists would do well to remember that although the states are indeed a check to federal powers, the federal government was also created under the Constitution to check the states. (See: Amendment 14, Section 1: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”) It is also important to note that states currently have certain powers; it is a misnomer to say a state has rights. States don’t have rights, people do.
The time has come for uniform, federal recognition of equal marriage access for equal people. After all, isn’t government supposedly responsible for ensuring that the rule of law is equally afforded to everyone? The Founders established the Supreme Court as the branch of government that was intended to take a principled, active role against affronts to liberty. Throughout the 20th century the Supreme Court often took such a role. There was the decision made in Loving v. Virginia which denied states the right to restrict access to marriage on the basis of race. Additionally, federal intervention in Gratz v. Bolinger worked to strengthen a legitimate state power to refuse to uphold federal affirmative action standards. Or take Lawrence v. Texas, a federal imposition which affirmed equal standards of sexual contact for same-sex couples. These decisions, although made by the federal government, advanced a freer society, whereas a states’ rights approach would have likely resulted in egregious discriminatory laws.
The rule of law and its equal application should be our standard. Though individual states are trending in this direction, it isn’t happening fast enough. With each passing day, the rights of millions of gay people in the United States are being violated. So, should libertarians celebrate the legalization of gay marriage in New York as a victory for individual liberty, or should we decry it as further intrusion of government in an already illegitimate function of the state? Equality under the law is a necessary precondition for individual liberty, so it is a victory, but we haven’t won the battle. The ultimate goal, of course, is for government to remove its heavy hand from marriage entirely. Until then, it is time to stand on principle and demand marriage equality.