Solving the gay marriage gordian knot, or why you should be a libertarian

August 4, 2010

The issue of gay marriage is now so convoluted that there’s nary any room for a partisan to stand with an ideological straight face. On one hand, you’ve got a federal court ruling that the Defense of Marriage Act (DOMA) is more or less a violation of state sovereignty and the federal respect for such sovereignty (read: liberals cheer on states’ rights and conservatives grumble about federal power). On the other hand, you’ve got a federal court ruling invalidating a state ban on gay marriage (read: liberals cheer on federal power and conservatives grumble about state’s rights). Granted, these are only federal district courts and may very well be overturned on appeal by either the circuit courts or the Supreme Court (particularly the DOMA case), but they are strikingly important to the trajectory of gay marriage, and perhaps even such short-term political considerations as the 2010 election or Kagan’s nomination.

It’s hard to imagine the the decisions can square, philosophically: if the federal government is obliged to accept the state definition of marriage (and thus DOMA is unconstitutional) for the purpose of federal benefits, on the theory that marriage is an issue reserved to the states under the 10th amendment, then it’s hard to imagine that the states should simultaneously be unable to themselves continue to legally define marriage the same way they have for the past 100+ years: with state support to traditional marriage and not to gay marriage. Of course, the Constitution isn’t philosophy, and there’s no inherent incompatibility with a 10th amendment decision under one philosophy and a 14th amendment decision under another. But it’s not going wash in the public’s mind. Politically, I would think this is a tactical victory for gay marriage supporters, but a strategic win for opponents. It just looks like a judicial assault on democratic law, at both the federal level and state level. Expect lots of shouting soon.

Which means I should probably promote what I believe to be the best — and perhaps only — solution to the puzzle: a libertarian decoupling of marriage and the state. Marriage is one of the quintessential pre-state institutions in human society, and it has always struck me as odd that people feel like the state is a necessary part of such an arrangement. As if you need the state to get married! Whether you think marriage is a religious institution or just a contract between two consenting people, it hardly follows that the government has any reason to be involved.  Sure, we need some authority to enforce the contracts, but shouldn’t the people getting married write the contract?  Right now, the state has a monopoly on the terms of the most basic human arrangement. And that’s wrong.

So what should we do, and how does this affect gay marriage? I say get rid of all government benefits for married couples. Even further, let’s end the government role in writing the marriage contracts, and reduce the government role to court enforcement of the private marriage contracts written by the actual marriage partners. My wife and I want to write a marriage contract that says X, Y, Z with consequences A,B,C? So be it. Other people want to do it differently, go ahead. But let’s dump all the tax breaks, incentives, and other nonsense. Then everybody will be equal — gays can write their own contracts that the state will enforce, polygamists can write their own contracts that the state will enforce — and the state will, at long last, no longer be tied up in directing what is fundamentally not theirs. The problem, when you really think about it, isn’t that the state is giving something to straight marriages that it isn’t giving to gay marriages. It’s that the state is giving something to married people at all.

Yes, it’s more complicated than this in the details, but not particularly difficult. Public hospitals still need to figure out visitation rights and insurance companies need to offer families plans. But why preference married people — straight or gay — in any of these decisions? If anything, it should be an affront to single people.  Why should my wife get to visit me at all hours in the hospital, but your girlfriend cannot? Why should my wife and I get a discount on health insurance just because we signed a piece of paper, when you and your boyfriend cannot? As IOZ likes to say (much more  bluntly), “why should any two people — straight or gay — get a government preference for anything simply because they’ve decided they’re only going to fuck each other?”

And he’s right. They should not. And don’t start in on this idea that the state has a compelling interest to promote marriage because marriage is good for society. That’s pure statist nonsense. The only people who will stop getting married if the state stops incentivizing it are the very people who are, by definition, getting married for the wrong reasons.

Extended thoughts on this matter later.

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4 Responses to Solving the gay marriage gordian knot, or why you should be a libertarian

  1. Doctor Whom on August 4, 2010 at 8:30 pm

    I don’t see any problem in squaring the two decisions. The 10th and 14th Amendments are both the law; one limits the power of the federal government, and the other, of the states. In the machinery of government, they are two ratchets coupled in series, each capable of turning only in the direction of greater protection for rights against government usurpation.

    I agree wholeheartedly with you about the privatization of marriage.

  2. Kevin on August 8, 2010 at 1:19 am

    I hope you do give some more thoughts on this – I would like to hear them. I’m not really in a position to add anything to the conversation, but I find your idea of decoupling marriage from the state really sensible.

  3. Galvin on August 10, 2010 at 2:41 pm

    I certainly agree that the whole mess would be sorted out considerably if the state had played a less prominent role in the first place. I’m still digesting your libertarian prescription, but as it is with most of your ideas, this one strikes me as quite sensible. So now that the goal is clear, what about the means? Just glancing at a random list of the “benefits” of marriage (http://www.nolo.com/legal-encyclopedia/article-30190.html), marriage seems to be perhaps the most thoroughly institutionalized of all social behaviors. What’s more deeply entrenched in our society than marriage? How on earth would we begin to deinstitutionalize it? This isn’t just about tax returns and hospital visits — it runs the gamut from private insurance plans to varied employment benefits to residential housing zones to special consumer discounts to my wife’s access to my university’s library and gym. That is, it’s as deeply entrenched in the private sector as it is in the public sector.

    In other words, this isn’t a thought experiment — it’s a question of how to reform or dismantle an existing institution that’s deeply intertwined with a myriad of diverse, change-resistant institutions.

  4. [...] my previous post on the topic, which was somewhat rushed, I asserted that the best solution to the issue of marriage inequality [...]

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