Gay Marriage and the Libertarian’s Dilemma | Hoover Instutn Gay Marriage and the Libertarian’s Dilemma

Contents:

• GAY MARRIAGE AND THE LIBERTARIAN’S DILEMMA
• THE LIBERTARIAN ARGUMENT FOR GAY MARRIAGE
• A LIBERTARIAN CASE FOR LEGALIZG GAY MARRIAGE
• THE LIBERAL SE AGAST GAY MARRIAGE
• GAY MARRIAGE
• THE LIBERTARIAN CASE FOR GAY MARRIAGE
• HOW SAFE IS GAY MARRIAGE? ADVOT FEAR CREASGLY NSERVATIVE URT
• GAY RIGHTS VS. FREE SPEECHSUPREME COURT BACKS WEB DIGNER OPPOSED TO SAME-SEX MARRIAGE

GAY MARRIAGE AND THE LIBERTARIAN’S DILEMMA

In what will surely be the two most closely watched s of the 2012-2013 term, the Supreme Court mt answer a qutn that no one would have dared to ask a generatn ago: Do the rtrictns on gay marriage at the state and feral level vlate the Uned Stat Constutn? Wholly apart om the law, there has culturally been a huge sea change popular sentiment the last several months, as many proment personag, om Hillary Clton to Rob Portman, have e forward supportg gay marriage, which now is poised to ga wispread public acceptance. That solutn answers the ncern that a new legal regime favorg gay marriage will be foisted on an uneasy public by an elist Supreme Court that is unduly swayed by a small and termed factn whose polil fluence is far excs of s social support.

The imposn of a legal amework on the trite web of relatnships that have prevly existed the realm of eedom—that is, outsi the law and entirely pennt on the tst and pliance of the dividuals volved—would not only be a setback for liberty but a disaster for those supposedly benefs: gay people themselv. Instead of celebratg their unique inty and history, they unrtook the arid qut for equaly—which meant, practice, battlg “discrimatn” employment and hog, a margal issue for most gay people—and fally takg up the csa for gay marriage. The realy on the ground, however, is a different matter: sce there’s no way to know if one is beg discrimated agast on acunt of one’s prumed sexualy—and sce gays have the choice not to divulge that rmatn— is impossible to be sure if such discrimatn has occurred, short of a “No Gays Need Apply” sign on the door.

I was ntent wh this “hold the le” stance, which drew a le the sand between the unnquered terrory of gay relatnships and the ernment-occupied terrory of heterosexual marriage, until I applied to other areas… and to my own life experience.

THE LIBERTARIAN ARGUMENT FOR GAY MARRIAGE

While Pecknold go on to give an ontologil-mystil sp to his se agast gay marriage, argug that “this provis the Wt wh an anthropology for unrstandg that future cizens e to the world through the unn of a man and a woman, ” this is easily separable om the rt of his le of thought, which is ntaed the very powerful sentenc:.

I spect that there are still strategic reasons for gay-marriage advot to rea om phg for plural marriage; there are numero ratnal arguments agast state endorsement of group marriag; and havg a polygamo marriage regnized and centivized by the state is not a human law should, I thk, allow groups of people to sleep the same hoe, engage group sex, and enter to ntracts or relig arrangements of their likg. But I thk would be impnt to clu their arrangement civil marriage, wh s centivizg benefs, bee if group marriage were to bee normalized and spread beyond a ty ge the nsequenc for society uld be signifint and Polics of Gay Marriage​Gay marriage remas illegal Atralia, most of Asia, Ai, and Oceania, and parts of Europe and Mexi; the most liberal of those untri strike me as the most natural plac for “the next advance” of marriage. I’d urge my fellow gay-marriage proponents to foc their efforts there––and legalizg group marriage Ameri right now would strengthen the hands of gay-marriage opponents abroad, nfirmg slippery-slope arguments that were raised and rejected here.

If ever ma sense to avoid this fight as a matter of polil strategy, still do; if gay marriage was ever a more important prry​ than plural marriage, remas Utilarian Case Agast Group MarriageThe strongt argument agast state-sanctned group marriage is how poorly has worked out for women and low-stat men most tim and plac has been tried.

A LIBERTARIAN CASE FOR LEGALIZG GAY MARRIAGE

And the pot isn’t to ensure that men “feel like” they have an aquate number of partners to choose om–– is to ensure that both genrs do have at least some realistic opportuny to participate the stutn of marriage, the same e that drove so many impassned proponents of gay marriage to broan the stutn. Extendg "marriage' to homosexual upl is agast dive law, but failure to do so vlat our civil law of equal rights, and public opn is, let's dig down a b on those we want to follow Locke's distctn between God's Law (Dive), Man's Law (Civil) and peer prsure (Public Opn), we need to distguish between the partnership sanctified by a Church ("Relig Marriage") and the terpersonal ntract regnized by the State ("Civil Marriage"). If those who object to gay marriage on relig grounds would be nsistent, then let them also reject the civil privileg of marriage not ntaed the such a time as we uld clearly distguish the two legal terms, however, the civil legal privileg of marriage should be extend to everybody.

As I will show, certa logil arguments favor of legal regnn of gay marriag n appeal not only to Democrats, but also to libertarians wh the Republin Party – and some arguments might even prove acceptable to relig Polil ContextBefore addrsg the logil aspects of the gay marriage issue, let’s be clear why Republins are divid on this matter. Early Years: Same-Sex Marriage Bans In 1970, jt one year after the historic Stonewall Rts that galvanized the gay rights movement, law stunt Richard Baker and librarian Jam McConnell applied for a marriage license Gerald Nelson rejected their applitn bee they were a same-sex uple, and a trial urt upheld his cisn. ” This lg effectively blocked feral urts om lg on same-sex marriage for s, leavg the cisn solely the hands of stat, which alt blow after blow to those hopg to see gay marriage beg 1973, for stance, Maryland beme the first state to create a law that explicly f marriage as a unn between a man and woman, a belief held by many nservative relig groups.

In 1989, the San Francis Board of Supervisors passed an ordance that allowed homosexual upl and unmarried heterosexual upl to register for domtic partnerships, which granted hospal visatn rights and other years later, the District of Columbia siarly passed a new law that allowed same-sex upl to register as domtic partners.

THE LIBERAL SE AGAST GAY MARRIAGE

C., 1993, the hight urt Hawaii led that a ban on same-sex marriage may vlate that state nstutn’s Equal Protectn Clse—the first time a state urt has ever ched toward makg gay marriage Hawaii Supreme Court sent the se—brought by a gay male uple and two lbian upl who were nied marriage licens 1990—back for further review to the lower First Circu Court, which 1991 origally dismissed the the state tried to prove that there was “pellg state tert” jtifyg the ban, the se would be tied up ligatn for the next three Defense of Marriage Act Opponents of gay marriage, however, did not s on their hnch. That is, even if a state ma gay marriage legal, same-sex upl still wouldn’t be able to file e tax jotly, sponsor spo for immigratn benefs or receive spoal Social Secury payments, among many other act was a huge setback for the marriage equaly movement, but transient good news arose three months later: Hawaii Judge Kev S.

GAY MARRIAGE

Phg for Change: Civil Unns The next saw a whirlwd of activy on the gay marriage ont, begng wh the year 2000 when Vermont beme the first state to legalize civil unns, a legal stat that provis most of the state-level benefs of years later, Massachetts beme the first state to legalize gay marriage when the Massachetts Supreme Court led that same-sex upl had the right to marry Goodridge v. Kansas and Texas were next 2005, and 2006 saw seven more stat passg Constutnal amendments agast gay towards the end of the , gay marriage beme legal var stat, cludg Connecticut, Iowa, Vermont (the first state to approve by legislative means) and New Hampshire.

Domtic Partnerships Throughout the and the begng of the next, California equently ma headl for seawg on the gay marriage state was the first to pass a domtic partnership statute 1999, and legislators tried to pass a same-sex marriage bill 2005 and 2007. For the first time the untry’s history, voters (rather than judg or legislators) Mae, Maryland, and Washgton approved Constutnal amendments permtg same-sex marriage marriage also beme a feral issue 2010, Massachetts, the first state to legalize gay marriage, found Sectn 3 of DOMA—the part of the 1996 law that fed marriage as a unn between one man and one woman—to be unnstutnal.

THE LIBERTARIAN CASE FOR GAY MARRIAGE

Wdsor, nservative Jtice Anthony Kennedy sid wh Jtic Ruth Bar Gsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan favor of same-sex marriage rights, ultimately makg gay marriage legal across the natn June this time, was still outlawed only 13 stat, and more than 20 other untri had already legalized gay marriage, startg wh the Netherlands December 2000. ; see also David Boaz, “Op-ed: Libertarians Have Long Led the Way on Marriage, ” The Advote (June 25, 2015); “Libertarian David Boaz on Gay Marriage” (Youtube); also Jt Raimondo, Gay Marriage; Charley Ree, Worried About Gay Marriage?

HOW SAFE IS GAY MARRIAGE? ADVOT FEAR CREASGLY NSERVATIVE URT

I was ially somewhat opposed to gay marriage, but not for the standard reasons about “damagg” the “stutn of marriage” and all that malarkey, but bee I feared (a) would stantly grant more posive rights to gay upl, and (b) was the th end of the wedge and would be ed to argue next for anti-discrimatn law beg applied to gays, which I of urse did and do oppose. Inially religns and societal ctom would regard only heterosexual unns as marriage, but eventually, wh secularizatn of society, gay upl would start beg more open, and referrg to their partners as spo, and have “weddg ceremoni. ” At first mastream society would be reluctant to accept homosexual unns the ncept or term “marriage, ” but I spect that polens, manners, creasg exposure to and faiary wh open homosexuals (-workers, fay members), and creasg smopolanns and secularizatn of society would rult an ially gdgg cludg, fally more plete cln, perhaps always wh a b of an asterisk among some quarters.

If the state is gog to monopolize the legal and urt system, if is gog to sist on labelg as “marriage” any relatnship whose ntractual cints will ign to regnize legally, then of urse has no right to ny this to gay upl who wish to have the civil aspects of their relatnship legally regnized. And there is no reason not to acknowlege that there is nothg unlibertarian, prciple, wh the ntractual regim tablished by two or more dividuals beg regnized legally; nor wh regnizg that should be up to private civil society, not the state, to ci how to nventnally label a self-scribed “homosexual marriage” relatnship.

GAY RIGHTS VS. FREE SPEECHSUPREME COURT BACKS WEB DIGNER OPPOSED TO SAME-SEX MARRIAGE

In holdg that Prop 8 nnot stand bee vlat the equal protectn and due procs rights of California’s lbian and gay upl, this cisn adds to the growg nsens urts and legislatur across the untry that there are no good reasons for excludg same-sex upl om marriage. ”John Arthur, an ALS patient, and Jim Obergefell, partners for more than 20 years, are married on a medil plane Maryland Hartong / Ccnati Enquirer via AP fileAdvocy groups were quick to h back at the two nservative jtic, wh the Human Rights Campaign, the untry’s largt gay rights group, sayg a statement that Thomas and Alo had “renewed their war on LGBTQ rights and marriage equaly, as the urt hangs the balance.