Modern libertarians focus on the size and scope of the State. Their philosophy grew out of concern over overreaching government in the middle of the twentieth century, and the U.S. government today is many times bigger than it was back then. The modern emphasis on shrinking the State, however, overshadows another important principle of the classical-liberal tradition that modern libertarianism derives from: equality before the law.
Part of the problem today is that an increasing number of libertarians lean toward the anarchist position. When one’s whole political perspective begins with the proposition that anything and everything the State does is evil and/or unnecessary, it’s easy to ignore questions about about how the State — given its existence – should properly conduct its business. These questions involve matters of justice and liberty, and if we libertarians ignore them, we risk not only irrelevance in important conversations but also risk consigning our fellow citizens to continued injustice and denials of liberty.
The legalization of same-sex marriage in New York last week has brought these tensions to the surface. Libertarians seem split over whether to celebrate this action. On one side is a group arguing that the real problem is State involvement in marriage in the first place and that this decision just makes it more involved. Therefore, this group seems to be arguing, we should oppose the action (or at least be indifferent about it) and work to separate marriage and State.
Equality under the Law
On the other side are those like me who — while agreeing that the long-term goal is separation of marriage and State — argue that, given the slim chance of separation happening any time soon, classical-liberal principles require the State to treat all citizens as equal before the law.
For most of human history political leaders acted with near total discretion, distributing benefits and impositions among their subjects however they like. One of the most important accomplishments of the liberal movement was to subject those with political power to rules. Starting with the Magna Carta and up through the democratic revolutions and constitutions of the eighteenth century, liberalism worked to create a society ruled by law not by men. Since the eighteenth century the liberal movement has also worked to ensure that all citizens, by virtue of their being adult humans, have their rights fully respected. The liberalism of the nineteenth century was antislavery, antiracist, and part of the earliest movements for women’s rights. It powerfully combined a commitment to liberty with a commitment to equality to make the case for the liberal order.
The advent of socialism led more and more liberals to abandon the liberty half of the equation in favor of the equality half, wrongly believing that restricting economic liberties in the name of the “positive” liberties promised by socialism would bring about a better world. Modern libertarianism pushed back by picking up the liberty side while often deemphasizing or outright abandoning the equality side. That, in my view, was a mistake.
We cannot avoid making judgments about how governments should act. Our own tradition as libertarians points to how to do this: 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. There is no credible evidence that legalizing it would harm innocent third parties, and there is no relevant functional difference between same-sex marriages and many of the marriages the State now licenses for heterosexuals. For example, many individuals who simply love each other and wish to make a life-long commitment but who do not wish or are unable to have children are issued marriage licenses.
Finally, it would also be wrong for governments to compel private religious organizations to perform same-sex marriages or to dictate whom private business must serve. The State must not discriminate, but individuals and private organizations should retain their rights of association.
In the case of same-sex marriage, letting the perfect be the enemy of the better would require that we tolerate true injustice. Libertarians should proudly support what the New York State Assembly has done. It is true to the oldest of our principles.