The Arena is a monthly debate feature designed to help readers explore issues of concern to classical liberals/libertarians.
This month, the issue is gay marriage. The proposition is: Gay Marriage Expands Liberty. Richard Lorenc will be arguing for the proposition. Steve Esposito will be arguing against the proposition.
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By Richard Lorenc
Of all the conversations I have with fellow lovers of liberty, those that explore the question of incrementalism tend to be the most provocative. Whatever the issue—implementing school choice, reducing aggression in foreign policy, or dismantling the welfare state—people who agree on the end goal can be worlds apart about the manner and means of reaching it.
So it is today with the issue of gay marriage. Although no libertarian believes it is proper for the State to deny a person his rights based on his sexuality, some, like my debate counterpart, argue that making government-issued marriage licenses available to same-sex couples amounts to an expansion of State power with no upshot for liberty. Only the complete extraction of the State from marriage, in this view, is worth libertarians’ efforts.
This line of reasoning, however, is both impractical and needlessly damaging to the cause of liberty.
First, I will speak to practicality. Legally speaking, marriage is, in fact, an important facet of the freedom of association, resembling any other two-person contract. The most important difference between legal marriage and other types of contract is the social credibility it confers on its participants. Ask the man on the street what a couple needs to become married and he will likely reply that there must be two adults, a religious leader, and a bureaucrat. But if he had to choose one officiant, odds are it would be the bureaucrat. In other words, libertarians have to deal with the fact that most ordinary people think government confers some sort of extra legitimacy on the union between two people.
Given this near-universally accepted role the State now plays in marriage, it will require many more years of preparation to open the Overton Window to the possibility of removing the State from marriage entirely. That individuals in society view the State’s role as a necessary element of the marriage process is probably the biggest obstacle to extracting government from marriage, as the idealist would wish.
That is why libertarians should first support the growing momentum behind ending the State’s prohibition of gay marriage. Such a stance would be entirely compatible with another libertarian value: the rule of law. Libertarians recognize for the law truly to rule, it must apply equally to every person regardless of wealth, office, or opinion.
It is vital for libertarians, operating as they must within the political status quo, to work to advance the rule of law in marriage—first as a means of expanding freedom of association, and also as an opportunity to display our bona fides as supporters of personal liberty to skeptical observers.
Supporting legalized gay marriage would be the only serious way to address unjust, legalized discrimination—exclusion from the law—today and to advance liberty in the future.
My debate opponent was exactly right when he previously wrote, “When you get down to the basics, government licenses serve only to preserve the markets of entrenched classes of people.” Indeed, marriage licenses are similar to occupational licenses in the crucial way that special-interest groups have captured the regulatory apparatus to exclude same-sex couples from contracting. But the similarities really end there.
Indeed, much of this entire debate turns on the fact that marriage is referred to as a “license,” but it is more like a predefined contract. Libertarians should work to abolish any regime that seeks to exclude—implicitly or explicitly—certain types of people from entering into a contract.
Unlike non-libertarian attempts to alter licensing legislation, legalizing gay marriage simply expands the number of potential marriage licenses, removing the arbitrary limit that an opposite-sex definition creates. While legalization leaves the State’s authority in place, it forces the State to wield its power in a far less discriminatory way, which is a victory for the rule of law.
One last point. While I do not pretend to speak for Hayek, the libertarian case for same-sex marriage also has distinct Hayekian undertones. Hayek recognized and described the differences between law and legislation, arguing that law is what exists, functions, and persists based on usefulness. Legislation, on the other hand, exists arbitrarily, and is often ignored for its irrelevance or harmfulness. I believe gay marriage is already customary law.
Legal theorist Lon Fuller writes:
Customary law can best be described as a language of interaction. To interact meaningfully men require a social setting in which the moves of the participating players will fall generally within some predictable pattern. To engage in effective social behavior men need the support of intermeshing anticipations that will let them know what their opposite numbers will do, or that will at least enable them to gauge the general scope of the repertory from which responses to their actions will be drawn. We sometimes speak of customary law as offering an unwritten code of conduct. The word code is appropriate here because what is involved is not simply a negation, a prohibition of certain disapproved actions, but also the obverse side of this negation, the meaning it confers on foreseeable and approved actions, which then furnish a point of orientation for ongoing interactive responses.
Despite being disallowed by the federal government and 38 states, same-sex marriage is already law for many couples and their friends and family who witness and approve of their relationships daily. This very real customary law is going up against legislated taboo. Bringing legislation into line with this law not only permits same-sex couples to file their taxes jointly and receive spousal benefits such as Social Security, but also allows gay couples to enjoy the same formal legitimacy as opposite-sex couples.
Libertarians may not like Social Security or any other government goodies that accrue to people by virtue of being married by the state. But we should not conflate our hostility to the welfare state with expanded freedom of association and deference to the rule of law. We simply fight to reduce the size and scope of the welfare state.
As a libertarian, I strive daily to snuff out the all-too-common viewpoint that the State has some unique claim on moral authority. Until that day—mindful of how our classical liberal roots enjoin us to support equality before the law and any expansion of individual liberty however imperfect—libertarians should accept the challenge of same-sex marriage. It is on the side of justice.
Even if we are not yet living in a world where “anything that’s peaceful” is also legal, we should at least be pleased to work toward a state of affairs in which no group may call upon the force of fiat law to exclude other groups from enjoying the same provisions and protections that the rule of law demands.
By Steve Esposito
Marriage has every trapping of a right, and rights should not be subject to licensing. This basic position seems to evaporate into emotion when the topic turns to marriage. But whether it’s styling hair, making coffins or calling your relationship with another person a marriage, no level of government should be licensing these activities to begin with.
It helps to distinguish between a marriage and a marriage license. To statists, this might not matter: Marriage is whatever the State says it is. To the rest of us, the distinction is meaningful. Marriage licenses—slips of fidelity paper—unlock a flow of government benefits and privileges that should not be disbursed at all, let alone disbursed only to a select few.
Marriage licenses have been a favorite tool for much state-imposed misery, for the good of society of course. It hits close to home for me, too, since I’m a white guy and my wife is Asian. Well into the 1960s we would not have been allowed a license in Arizona, Georgia, Montana, Nebraska, Nevada, Oregon, South Carolina, South Dakota, Texas, Utah, Virginia, and Wyoming (see tables at the link). It was not just a matter of race either. Some states included nation of ancestry, with Filipinos hardest hit by the restrictions. White people couldn’t marry anyone of another race in South Carolina, Texas, and Virginia for much of our nation’s history.
Every bit of these restrictions were driven by a ruling set of people who decided for others what a marriage should look like. When some states, and eventually the Supreme Court, ended the miscegenation prohibition, the “solution” was to extend permission to miscegenate, while retaining the rest of the discriminations and the licensing scheme to enforce them.
In Tennessee, couples get a discount on their licenses for completing “marriage counseling.” Oddly, all of the counseling is about the marriage and none of it is about the license. That is, the State tells you how to run a marriage. Until you finish that course—just as ignorant about Tennessee domestic law as you entered it—or unless you pay extra to skip it, Tennessee considers the both of you “incapable persons.” Our pastor had to go along with this; if he’d married us before we obtained a license, he could have been fined $500 and lost his own license.
Without a license I could not have given my wife the wedding she wanted, from the minister of our choice. Other than that, my wife and I did not have to worry about license restrictions in 2011 Tennessee. But that does not remove my resentment at the State’s injecting itself into the process at every turn.
Governments that recognize the license grant a host of special illiberal privileges to the licensees. That, and only that, is what the same-sex marriage “debate” is about. In 2004, relating to the Defense of Marriage Act (DOMA), the Government Accounting Office identified for the Senate majority leader 1,138 federal programs that mention marriage as part of a recipient’s qualifications. All of the arguments before the Supreme Court on this topic are about accessing these special privileges and benefits for licensed couples. Incidentally, it’s not just the gender of the parties to the marriage that is at issue; it’s the number as well. The recent oral arguments in the DOMA case before the U.S. Supreme Court mention in passing that marriage licenses are for couples only, and four states have constitutional prohibitions against polygamous marriages because the federal government forced those prohibitions.
Marriage licenses are much different from marriage agreements. One thing a marriage license is not, and never has been, is a “contract” between two people. In contracts, the parties get to set terms. In marriages, the parties get to set the terms. In marriage licenses, the parties don’t get to set any terms whatsoever. The license is between individuals and the State, not between you and your partner (or partners), and the State sets the terms. The one constant of the marriage license is the implicit prohibition of sexual relations with a party not named on the license. Other conditions of the license come and go, but this one always remains. In every single state and territory of the United States, if you prove infidelity you can get out of the license. In many, you also gain the possibility of taking your partner to the cleaners, even the possibility of a paycheck for life. Of course, there are other ways out of a marriage license, but that infidelity aspect is still true everywhere a marriage license is involved.
Marriages predate recorded history. Marriage licenses are a more recent creation. With regard to the United States, marriage licenses were invented in Massachusetts (see page 9 here) and have been required there since 1639. At the time, the Bay Colony government was composed almost exclusively of the Puritan sect of Christianity, and there was a religious purity test to hold office. Not coincidentally, licensed marriage in Massachusetts began as one white man and one white woman. It remained that way until 1843, when licenses became legal for interracial marriage. Massachusetts enacted a 1913 prohibition against couples of other states marrying there if the marriages were not legal in their home states. This law was not repealed until 2008. In 2004, same-sex couples became a legal combination there. The situation in the rest of the states and territories is no less confusing, though they all generally follow the same Puritan religious tradition, with modifications over time.
England and Wales did not get into the license game until Hardwicke’s Marriage Act of 1753, and they created civil marriages effective in 1837. Prior to the adoption of marriage licenses, common-law marriage was the way people became married. In 1215 England, “the banns of marriage” was a Catholic formalization where couples announced that they intended to marry and that gave their families, communities, and clergy a chance to object. Sometimes all English and Welsh subjects had to follow the banns, sometimes not, depending on the how closely wed the church was to the State in their era. (Covering all of the switches on that is the length of an article on its own.)
Some states have “evolved” common-law marriage into a decree that couples who “act married” are married, without any formal notification, and frequently after the fact, like in a probate property dispute. If you are in the common-law jurisdictions of Alabama, Colorado, Iowa, Kansas, Montana, Rhode Island, South Carolina, Texas, Utah, or the District of Columbia, you could be married and neither you nor your common-law spouse—nor anyone else—would know it until long after you were dead. Death is the only instance where Massachusetts recognizes common-law marriage. If you formally willed your farm to your best friend, for example, it could wind up in the hands of the last person you were living with instead.
This is something, but it’s not liberty.
Marriage licenses can also decide how courts will treat paternity. Chicago Bulls great Michael Jordan and his legal team used the “presumption of paternity” principle to fight a lawsuit in Georgia, brought (and now dropped) by a married woman who claimed Jordan was the father of her teen son. Without a license in play, courts rely on scientific genetics.
Marriages are not plain old agreements like any other; they are much more intimate. It is not like a real-estate deal, it is something more special. Even we minarchist libertarians cede sovereigns some authority in tracking land ownership. What we do not expect, invite, or desire is a government keeping track of people as if they were property.
These days, marriages are a public declaration of an intimate relationship, no matter how much of the public they are letting in on the deal and no matter if they follow a faith at all. All of the groups you involve might embrace the union, or they may decide to stop letting you and your spouse hang around. Hey, they have the same freedom to associate or not as you and your marriage partner do. Or maybe partners: For Jewish polygamists there might be a Habayit Hayehudi Hashalem temple down the street that will welcome you, or you can form your own, or just not worry about it. Muslims, Nigerian Celestial Christians, and Liberian Lutherans don’t have to worry about their congregations either, if they wish to form a marriage involving more than two people. When you have voluntary arrangements between willing parties, freedom rules the day. That is how marriage has evolved. When you invite the government to the honeymoon, you chase freedom from the scene.
Some incorrectly apply these sentiments to licensed marriage, calling it “a public declaration of a deep and meaningful relationship,” even though you can do that every day and twice on Sunday without a license. Indeed, millions of people denied licenses through the years did just that and lived married without licenses. In fact, the only form of voluntarily agreed-upon marriage is the unlicensed variety. In our recent history, the government punished people for being married without a license. Is this a problem of marriage, or is this a problem caused by a government licensing scheme?
Where is the libertarian argument for liberty in the general discussion about same-sex marriage? It is absent. When expressing their solidarity with the authoritarian statists, the excuse frequently given is to make things “fair.” Well, if you are some sort of pragmatist who wants to retain all these unlibertarian programs, you are not making anything “fair” by giving special handouts that should not exist anyway to couples with licenses, while excluding the unlicensed. Neither are you extending liberty by perpetuating the licensing scheme.
Striking down DOMA might not be as good as striking the word “marriage” from the federal register. It might even be better than a lot of alternatives. Call it a tangent, call it a significant turn of events, call it what you will. Just don’t call it liberty.
Steve Esposito is a graduate of the University of Tennessee (BS, Finance), a former defense contractor, and a 30-year veteran of the U.S. Army National Guard and Reserve (Aviation). A reformed Chicago School Economist aficionado, he now embraces the “hard core” Austrian School. He currently lives in Knoxville, Tenn., with his second wife. He can be reached through [email protected] and via email at [email protected]