It’s finally reached the Supreme Court.
As an issue that has garnered international attention in the past 10 years, the division over gay marriage in America has split families, infiltrated pop culture, and won and lost elections. The Supreme Court, in Hollingsworth v. Perry, will hear arguments on Proposition 8, California’s ban on gay marriage, and whether it is in violation with the 14th amendment, rendering state-based bans illegal. This is the precedent needed to federalize same-sex marriage.
It’s about damned time.
I know that I’m at odds with my right-leaning libertarian friends on this issue. Whenever we discuss gay marriage, we end on simple, mutually agreeable terms: The government shouldn’t be involved with marriage in the first place—problem solved. But because marriage has shifted from a religious to a religious and political term, such a separation is now impossible. We need to be more practical and think about smaller steps. Considering the 1,138 federal benefits associated with marriage (and more on the individual state level), the libertarian debate should shift more towards legal arguments, civil liberties, and government expansion.
The constitutional and legal arguments for gay marriage have been solid for years. The Equal Protection Clause of the Fourteenth Amendment 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.” The First Amendment has been interpreted again and again to include freedom of association. Meyer v. Nebraska established that there is a right to marry in the United States and Lawrence v. Texas explicitly fought state bans against sodomy, making homosexual sexual activity legal in all US territories since 2003.
Beyond legal precedent, libertarians have a long history of standing for equal rights before the law. Right to contract has long been libertarian philosophy, and what is marriage, in any legal context, but a contract? Most libertarians agree that the government, should it have any purpose, should provide courts and protections of rights. When an oppressive government (read: state) can be superseded by a government (read: federal) that guarantees these rights, libertarians tend to be in support of such measures, especially when the measure does not prohibit private businesses from managing their affairs as they see fit. Gina Luttrell writes,
I think ultimately what we have to say, though, is that any violation of rights on the part of government — again, in any form — should be stopped. In this case, state governments attempting to legislate what kinds of contracts that consenting adults enter into is wrong, and if the federal government can effectively outlaw that, I think it should.
I couldn’t agree more.
The only libertarian argument that I consider as viable is that legalizing gay marriage would expand the government. In order to accomodate the new recipients of those 1,138 benefits mentioned earlier, the federal government must grow to enable a new surge of marriages. One of the unforeseen consequences would be the federal burden of millions of Americans newly qualifying for benefits previously only privileged to those who could marry. But this too falls short of being a compelling reason to oppose gay marriage. Reason writes,
That should make the argument in favor of gay marriage recognition even more compelling to libertarians. If gay marriages end up damaging or breaking our labyrinthine tax code, we should be cheering it on. Choke on all those tax credits, Leviathan! Failing that, the more complex the tax code, the more unfair it is and the more it favors certain select classes. Even if the federal government can bear the burden of expanding the base of its benefits, at least the distribution will then be more evenly applied to the population.
It’s time for libertarians to come together and support fully legalized gay marriage as Hollingsworth v. Perry pushes through the Supreme Court tomorrow. We should support a correct legal precedent. We should advocate for the civil liberties of our fellows. And we should do it to just stick it to the government. Libertarians are too often seen prioritizing fiscal over civil goals; this is an issue to reverse that paradigm.
Fingers crossed for federalization.