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.