Category Archives: Law

Libertarians Choose “Marriage Equality” over Individualism

In the wake of the Supreme Court’s landmark ruling on same-sex marriage, Rebecca Traister at New York Magazine offers some important considerations on the ruling’s lesser-known implications, specifically with regard to single people. She paints a rosy picture of how legal same-sex marriage will relieve the stigma on those who choose not to marry in the first place:

“Gay marriage has presented a challenge to straight marriage in part because it resists the mandate that everyone be straight married. It also, ideally, takes the great things about partnership—love, companionship, commitment—and makes them the basis of the institution.

[…]

The freedom to marry someone of the same sex is the freedom to not have to marry someone of the opposite sex, which in an ideal universe should be tied to the freedom not to have to marry, period.”

The author raises some good points, but while I agree that the Supreme Court ruling underscores a new social order that more readily accepts abstention from marriage, the legal inequalities will persist into the foreseeable future. Further, libertarians, who are best positioned to spearhead this issue, are conspicuously absent from the debate.

The goal of marriage equality, as most understand it, is inherently a farce. Equality is a property enjoyed by individuals, not by socially-constructed associations between those individuals. Even if we achieve total marriage equality, extending the government-conferred benefits of marriage to those partaking in any conceivable union (polygamy, bigamy, human-animal marriages, etc.), single people will always be denied those benefits. Singles will remain, as Bella DePaulo laments, “second-class citizens.”

The social conservatives, despite their faults, are the only ones to voice a consistent answer—albeit an unsatisfactory one, for several reasons—to this inequity. They maintain that promoting marriage serves a public interest through its role in sanctioning and facilitating procreation. They would oppose extending government benefits to single people for the same reason, purportedly, that they oppose extending them to gays and lesbians.

The proponents of same-sex marriage, however, cannot consistently oppose equality for singles. If they truly believe that love, companionship, and commitment should form the basis of the institution, they should want to end government privileges for married individuals altogether. While modern liberals could claim that government privileges for marriage are consistent with democracy in that majorities can grant privileges for whomever, whenever, this too would be inconsistent with their calls for equality.

The truly perplexing case here, however, is the plight of libertarian same-sex marriage proponents. Libertarians generally do not see (or care about) a public interest in the government promoting marriage, nor are they pure majoritarians. Rather, they often assert that government has no business sanctioning marriage at all; but this makes their vacuous celebration of the Supreme Court’s ruling perplexing, since the ruling does not bring about libertarians’ ideal—it in fact reinforces the current government-marriage paradigm.

If libertarians truly wanted to achieve equality for all individuals, regardless of marriage status, why are they so fixated on the courts? A quick search of the libertarian Cato Institute’s website shows that it has filed amicus briefs in numerous high-profile cases like Hollingsworth v. Perry, Kitchen v. Herbert, Bishop v. Smith, and United States v. Windsor. But where was Cato in January of 2014, when Oklahoma legislators pushed to repeal government licensing of marriage altogether? Where were they when Oklahoma legislators tried this again in March of 2015? Where were they in April of 2015 when Alabama legislators made similar efforts? And where are they now that legislators in both Utah and Michigan have drafted bills to remove the government from marriage in those states?

Libertarians have called for “privatizing marriage” before, but their focus and tenacity in that regard has dulled, and these days the idea warrants only an afterthought. Some liberty-oriented groups, as well as several individual libertarians, grasp this challenge, but anyone who highlights these mistaken priorities, even merely implying that the courts are a counterproductive course, risks accusations of bigotry or homophobia, even from other libertarians. Why is there such hostility here?

My guess is that libertarians have for so long been relegated to the sidelines of American politics—nobody really cares about libertarians’ positions on boring ol’ fiscal policy, foreign policy, regulation, etc.—that when a popular social movement arises that (somewhat) comports with libertarian philosophy, they cannot resist latching on to it. Libertarians are so hungry for acceptance from mainstream voters, activists, and ideologues that they will follow this fad to the end of its rabbit hole, even if it takes them through the court system, and further ossifies the butchered notions of Due Process and Equal Protection that have so supplanted the original meaning of the Constitution, a document many libertarians claim is important.

Actions speak louder than words. Libertarians who yearn for true individual equality before the law should not celebrate the Supreme Court’s decision—at best, the decision is morally neutral. If they support true equality, they cannot ignore the plight of single people while remaining logically consistent. The only way to achieve true equality, for straights, gays, lesbians, singles, and everyone else, is to remove the government from marriage entirely. Any effort that does not do that is at best a waste of time.