After becoming legal in Rhode Island, Delaware, and Minnesota already this year, the advance of gay marriage appears unstoppable. Libertarians, although entirely supportive of equal rights for all, are divided on whether changing marriage laws to include gay couples actually expands freedom. In these two essays for the Foundation for Economic Education's "Arena," I debate the merits of legalizing gay marriage with fellow libertarian Steve Esposito. Be sure to read the complete essays and vote for the best argument here.
"Gay Marriage Expands Liberty," 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...
"Gay Marriage Does Not Expand Liberty," by Steve Esposito
Marriage has every trapping of a right, and rights should not be subject to licensing. This basic position seems to evaporate into emotion when the topic turns to marriage. But whether it’s styling hair, making coffins or calling your relationship with another person a marriage, no level of government should be licensing these activities to begin with.
It helps to distinguish between a marriage and a marriage license. To statists, this might not matter: Marriage is whatever the State says it is. To the rest of us, the distinction is meaningful. Marriage licenses — slips of fidelity paper — unlock a flow of government benefits and privileges that should not be disbursed at all, let alone disbursed only to a select few.
Marriage licenses have been a favorite tool for much state-imposed misery, for the good of society of course. It hits close to home for me, too, since I’m a white guy and my wife is Asian. Well into the 1960s we would not have been allowed a license in Arizona, Georgia, Montana, Nebraska, Nevada, Oregon, South Carolina, South Dakota, Texas, Utah, Virginia, and Wyoming (see tables at the link). It was not just a matter of race either. Some states included nation of ancestry, with Filipinos hardest hit by the restrictions. White people couldn’t marry anyone of another race in South Carolina, Texas, and Virginia for much of our nation’s history.
Every bit of these restrictions were driven by a ruling set of people who decided for others what a marriage should look like. When some states, and eventually the Supreme Court, ended the miscegenation prohibition, the “solution” was to extend permission to miscegenate, while retaining the rest of the discriminations and the licensing scheme to enforce them.
In Tennessee, couples get a discount on their licenses for completing “marriage counseling.” Oddly, all of the counseling is about the marriage and none of it is about the license. That is, the State tells you how to run a marriage. Until you finish that course — just as ignorant about Tennessee domestic law as you entered it — or unless you pay extra to skip it, Tennessee considers the both of you “incapable persons.” Our pastor had to go along with this; if he’d married us before we obtained a license, he could have been fined $500 and lost his own license.
Without a license I could not have given my wife the wedding she wanted, from the minister of our choice. Other than that, my wife and I did not have to worry about license restrictions in 2011 Tennessee. But that does not remove my resentment at the State’s injecting itself into the process at every turn...