Over at the usually great Pocket Full of Liberty, Jay Caruso (#FF) has a post about the equality argument for gay marriage. In short, he doesn’t buy it. This is disappointing for a fellow libertarian blog, but not surprising. We allow intellectual disagreements in our ranks. That’s sort of the point of libertarianism.
Jay makes a simple, well-meaning case that the freedom to marry isn’t an equality issue.
If you’re an 18 (or 16 with parental consent) year-old heterosexual male or female, you have the right to marry any person of your choosing who happens to be of the opposite sex and not a close blood relative (sibling or parent — though first cousins can marry — more about that soon) and who is not already married. Guess what? An 18-year-old homosexual male or female has the same rights.
This actually implies that gay marriage rights would mean less equality, since for example two homosexuals males would be able to marry, but two heterosexual males would not. But who said so? That’s why the term “gay marriage” is itself so misleading. The argument has nothing to do with sexual orientation and everything to do with gender (thus, “same-sex marriage”). There is already no legal requirement that two people of the opposite sex getting married today be in love with each other, however common and assumed that may be. There would be nothing to stop two straight men from getting married under same-sex marriage.
That’s why it’s more equal than the current “traditional” marriage regime. Because it allows any two consenting adults to marry. The gender restriction for marriage is a religious one, not a secular legal one, thus it should not be allowed in a secular constitutional republic.
Ironically, Jay argues that because we live in a “representative republic”, lawmakers should be able to ban same-sex marriage (and anything else they want?) until the people vote them out.
We live in a representative republic. People are elected to represent their constituents in statehouses and the Governors mansions around the country. If those elected officials choose to legalize gay marriage, then the voters can determine whether or not they want to elect different people who repeal those laws. That’s our system and it works beautifully, if not always perfectly.
What Jay describes is majoritarianism, not constitutionalism. Our founders set up civil courts and the supremacy of the freedoms enshrined in the Constitution to protect us from this very thing. If a law passed by a city, state, or Congress violates a constitutional right, the next election isn’t the only time it can be fixed. The courts can also overturn it. The people’s representatives in Virginia before 1967 decided that marriage was between one man and one woman, as long as they were of the same race. If majoritarianism were our system, it would have been a long, dark time indeed before that were changed and the freedom of Virginians (and everyone else) to marry restored. Not understanding this doesn’t make you a racist, of course, as the straw man Jay erects would argue, just unfortunately misguided about constitutional law.
Jay then uses other existing restrictions on marriage to conclude his case.
The government already prohibits marriage in a number of ways, meaning they’re prohibiting people in love from getting hitched. And I don’t see anybody beating down the doors to make those changes. So what are those prohibitions? They include:
1. Age — In most states, marriages are legally recognized at the age of 18. However, in Nebraska and Mississippi, people as young as 17 can acquire a marriage license without parental consent.
2. Number of spouses — Polygamy is illegal in all 50 states.
3. Blood separation — This is where it gets interesting. While all states ban all sibling and all parent/child marriages, first cousin marriage is more complicated. 19 states and the District of Columbia recognize marriages between first cousins. 25 states ban first cousin marriages and 6 states allow first cousin marriage under certain circumstances. Ironically, two states that allow gays to marry, Iowa and Washington, prohibit first cousin marriage.
Naturally, I don’t see people all over Twitter, Facebook, blogs, or anywhere else fighting for the oppressed first cousins in WA or IA who are being subject to unequal protection.
The first point is obvious. We restrict a great many things based on (state-defined) age of consent. Minors cannot sign contracts, so of course they can’t get married. Marriage is a contract. This isn’t a matter of equality, because of course minors don’t have equal standing as adults. This distinction is actually enshrined in the Constitution, at least as far as voting rights.
Polygamy and cousins marrying are more tricky, but not by much. There is no huge advocacy for these issues, quite simply, because they affect almost no one. Polygamy and incest are self-limiting arrangements. Almost no one wants to marry their cousin, and almost no one wants to marry more than one person. So by definition there is no widespread public outcry or advocacy for those rights.
Though I will not be the first to admit that they are indeed rights. If the right to marry is fundamental, as courts have declared for at least the last 100 years, then there ought be no restrictions on it at all between consenting adults. It’s just a contract. Spouses draw up the terms, not the state. The participants may and almost always do add more meaning to it, as my wife and I have, but that’s all it is to the state. A church may also add more meaning to it, but the civil institution of marriage that is recognized by the states should be open to everyone. Everyone.