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Monday, August 30, 2010

The Unfortunate Libertarian Evasion of Same-Sex "Gay" Marriage

The recent ruling made by California's very own U.S. Chief District Judge Vaughn Walker -- in which Proposition 8, which was a voter-approved referendum that banned gay marriage in the state (thanks to the state-approved homophobic Mormon Church that lobbied heavily to get their precious initiative on the state's ballot), has violated the civil rights of ardent gay activists (who want state-approved gay marriage codified into law) -- has undoubtedly ignited both praise by progressives and condemnation by statist conservatives for the judge. (Walker happens to be openly-gay himself, and the statist conservatives have put him in their cross hairs by accusing him, in a malicious fashion, of employing his sexual orientation as a political crutch for his ruling. Even though that kind of paradigm is unconscionable, immoral, and unethical to the Nth Degree, that pales in comparison to the type of mentality that has engulfed some libertarians in the libertarian movement, especially from those who employ semantical word game tactics to evade legitimate arguments as to why the state has no rightful, legitimate, and valid grounds for refusing to recognize same-sex "gay" marriage. The court's decision, as mandated by Walker himself, can be seen here [pdf].)

The arguments that some right-libertarians have thrown into the ideological and political mix have been dubious. For instance, right-libertarian (and yet anti-IP attorney) Stephan Kinsella, who, in a misguided manner, penned a piece on his Libertarian Standard blog condemning Walker's legal decision and brushing off any notion that the law violated the equal protection clause of the Fourteenth Amendment to the Constitution. Kinsella notes:

Gay rights advocates filed lawsuits to have the constitutional amendment declared unconstitutional. I predicted they would lose. First, they could not prevail on state constitutional grounds since Prop. 8 actually amended the California Constitution. You can’t argue a provision of the constitution is unconstitutional. So the question is whether this provision of the California Constitution violates the Fourteenth Amendment of the U.S. Constitution (see my The Libertarian Case Against the Fourteenth Amendment). In my view, it clearly does not; any argument that such a law violates equal protection is ludicrous–there is no way the equal protection clause at the time of the ratification of the Fourteenth Amendment (1868) was understood to be so broad as to prohibit state laws that treated same-sex unions differently than traditional, heterosexual ones. As for due process–this was a validly enacted constitutional amendment, following regular legal procedures. So it was not a violation of due process (as for the doctrine of "substantive due process"–well this is a ridiculous, obviously dishonest, invented concept; process is, um, procedural).

(The notion that Kinsella [and others who share his point of view] has unveiled here is simply preposterous, but that will be explored later in this post. For now readers can simply make up their minds as to the "validity" of Kinsella's bogus claims on this issue.)

Even Lew Rockwell, the founder and former president of the Ludwig von Mises Institute and creator (and blogger) of, formerly objected to Walker's ruling. In his blog post "Gay Marriage and Immigration" (how quaint that he married those two issues together!), dated August 5, 2010 at 10:24 AM, he writes in part:

[T]he Massachusetts. federal judge who ruled that marriage is none of the federal government’s business, and therefore Massachusetts may enact it, despite the defense of marriage act, had a strong case. He is ignored, however, while the crazed California judge is heralded.

And then, in the same post, he also writes:

[W]hile I can’t stand the foreign-government loving, war-mongering fundamentalist right, I do think they have one point. The heterophobes want to outlaw Church discrimination, that is, freedom. For many activists, government gay marriage is only one step towards even more totalitarian anti-discrimination laws.

"Crazed California judge"? "Heterophobes wanting to outlaw Church discrimination"? Who is he kidding? If anything, Rockwell has always been a homophobe against gays, especially on the issue of gay marriage. For him to use this language to condemn the actions of an openly-gay federal magistrate (even if he's not a libertarian) is entirely uncalled for and unfair.

Overall, here are four principle arguments made by some in the liberty camp against the state's attempt to recognize and embrace state-approved same-sex "gay" marriage*:

  1. The State has no business in the marriage realm, so any approval of the ruling equates an acceptance of the State's role in it as well as granting and codifying such a marriage. That even includes the State.

  2. There are more pressing and more paramount things to be concerned about.

  3. Marriage is merely a means for procreation and nothing else.

  4. Federal courts (especially the U.S. district ones) have no legal jurisdiction over such matters at the state level.

Here are my swift replies:

  1. No one, not even Yours Truly, says that the State must be involved in private affairs such as the institution of marriage. Of course it neither has any legitimate role in marriage nor it should have anything to do with it whatsoever. No one except for statist progressives and conservatives has suggested otherwise. The problem is that it is involved in the institution now; therefore, it's in the State's best interest not to invidiously deny a certain group of people of their freedom to marry while granting other groups special rights and privileges at the discriminated group's expense. Will statist conservatives (including the religious ilk) and vulgar libertarians (mainly the right-libertarian ilk) use the power of the State to say that gays must be barred from eating in the same restaurants, going to the same schools, or driving on the same roads as straights do? Should the State be used to discriminate gays by prohibiting them from entering State-subsidized and State-controlled public buildings such as courtrooms, government schools, hospitals, and municipal buildings? (Let's include legislative chambers such as state legislatures, state capitals, and, not to mention, the U.S. Congress and the Senate.)

  2. How can there be "more pressing and more paramount things to be concerned about"? When gays are prevented from having the legal and normal (and not to mention mutual) benefits of marriage (including hospital visitation, custody of children, medical-making decisions involving incapacitated partners, next of kin business, etc.), there are no "more pressing and more paramount things to be concerned about". Human liberty is at stake here. Liberty isn't some abstraction; it's about choosing to live your own life the way you want to live as long as you are not aggressing against your neighbor. Everyone's liberty must be protected at all costs or we become modern-day slaves to the State (although that has vastly and mostly happened today). It's very simple for libertarians to look the other way and pretend that this isn't a big deal. (After all, Jim Crow wasn't a pressing matter to the State-supported and State-backed white bigots in the South in the 1960s.) Besides, the ruling has been made, and we must learn to live with it. How is praising this recent decision a troubling distraction from what is more significant? As human beings we are more capable of multitasking than we realize.

  3. This Neanderthalic view that marriage was constructed only for the purpose of procreation and nothing more than that is simply ludicrous. Marriage has never been exclusively institutionalized for that purpose. If that were entirely true, infertile couples, couples who choose to be childless, and even those who are elderly would have been forbidden to join in matrimony. Moreover, couples who are in wedlock choose to enter in such a partnership predicated on other values at the heart of their decisions: economic security, love and emotional fulfillment, and much more. The Freeman's very won Contributing Editor Stephen Horwitz opined on the evolution of the family which provides excellent insight on this subject.

    Additionally, a related objection to this ruling is that heterosexual intercourse is the pillar of marital consummation. My argument to this: so what? Big deal! Institutions from time immemorial evolve. That's nothing new in the grand scheme of things. Even if consummation were pertinent in some manner, that simply changes nothing, considering the reasonable principle of mutatis mutandis still exists and will remain available indefinitely. This objection, whether it's levied on religious and secular grounds (even if it's predicated on some alleged moral and ethical standpoint), is flatly absurd in every immeasurable way.

  4. This business that federal courts have no business interceding in statist matters propped up by the states and their localities that lead to the curtailing of other individuals' human freedom is nonsensical all the way around. We as individuals are dealing with crucial matters relating to liberty that must be applied to individuals consistently, especially when the State denies that consistency to other peace-loving people from all walks of life. This point even applies to Kinsella's and Rockwell's arguments as well: despite the Founders' good intentions involving the political apparatus of federalism (which is a loose confederation of nation-like states that reserve the powers to those individuals and not the "states" because they are merely abstractions), state rights do not exist. Kinsella, Rockwell, and their Misean right-libertarian ilk get frequently annoyed when the State and its foot soldiers ignore other people's already-owned First Amendemt, Second Amendment, and Fourth Amendment-protected rights. So how can they ignore the existence of the people's Fourteenth Amendment protections, which state in part in the following?:

    No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. [Emphasis added.]

    Whether Kinsella, Rockwell, their ilk, and statist conservatives like it or not, that amendment exists. What are they going to do about it? Call for a repeal of that amendment? And, if so, would that entail a mass movement of right-libertarians and statist conservatives coalescing to push the states to ratify a new constitutional amendment that would nullify that amendment in its entirety? I see no valid argument against the federal court's jurisdiction in this matter as far as I'm concerned.

Besides, would Rockwell, Kinsella, and their allies who have objections to the ruling make the same argument against interracial marriage? There was a time when interracial marriage was illegal in the South (at the height of the Jim Crow era) and in many other states as well. The Supreme Court refused to intervene in such affairs until 1967 when it ruled on a 9-0 vote in its landmark federal case Loving v. Virginia that such discrimination was illegal and in stark opposition to the Due Process and Equal Protection provisions of the Fourteenth Amendment as well. Kinsella objects to the Substantive Due Process claims that the amendment covers, which is ludicrous.

Critics may have been opposed to the ideas underlying that principle, but there have been critics of all sorts opposing this idea for years. Just because they criticized substantive due process doesn't mean that their arguments are in the right or just; in fact, they are substantially subjective without any legal basis whatsoever. The points made by Rockwell, Kinsella, and others who have raised similar arguments are nonsensical and excrement. They are simply naive and foolish to believe in and favor that discriminatory crud.

Moreover, it does not help that Rockwell's homophobia as the basis for his arguments against equal protection under the law (considering the law mandates that the State must be evenhanded in its application of such decisions) has become the face of the libertarian movement. Do some of those libertarians really want to alienate people more than they already have by taking that shameful position? Where's the fairness in that type of paradigm altogether?

As long as the State has its dirty hands in the institution of marriage, the system, like or not, needs to be even-handed. While the goal of eliminating the State's hand in marriage must be pursued, in the interim the State has no business discriminating considering all governments are created by their own laws that are the heart and soul of their own constitutions.

[*Note: I've taken the four points from Sheldon Richman's arguments in his blog post which is actually similar to my views on the matter and reworded his statements according to how I see them. A well-deserved hat tip to him for this.]

[Cross-posted on The Freeman Chronicles and the Free Dissent blog.]