Equality Under The Law?

At Catallarchy, Randall McElroy argues that libertarians ought to endorse the expansion of the legal institution of marriage to include same sex couples. One of his arguments is that in an imperfect world we should favor and pursue equality under the law:

In the long run, this is not the best solution. The government has no proper role in marriage. Ultimately we want to roll back its powers far, far beyond this area. But in the meantime, equality before the law and a little bit of pragmatism should be our guides.

McElroy and others continue the argument for equality under the law in comments to the piece.

That argument fails on more than one level. In the first place, the legal institution of marriage is intended and designed to produce inequality under the law. If single individuals were equal to married individuals under the law, then there would be no reason to raise this argument in the first place.

“But Kennedy”, some will argue, “there is no issue of inequality between single individuals and married individuals, because singles are free to legally marry.” Yes, that’s true, but gays are also free to legally marry, they’re just not free to legally marry members of their sex. In fact, there are gays who are legally married to members of the opposite sex.

“But that’s not fair, because straights are free to legally marry someone with whom they are sexually compatible while gays are not”, comes the reply. That’s also true, but if it’s not fair to legally require gays to jump through a hoop they don’t want to jump through to qualify for benefits given to others, then how is it fair to require any single person to jump through the hoop of legal marriage to qualify for the same benefits?

Legally married gays may be legally equal to legally married straights, but they will enjoy legal benefits and privileges exceeding those of single individuals. Those legal benefits and privileges over single individuals are what is being sought. Expanding a pool of legally privileged individuals does not produce equality under the law. Legal marriage, by it’s nature, produces inequality under the law, it produces privileges and benefits which cannot be justified.

Libertarians arguing for “equality under the law” are also forgetting how such “equality” will be used to directly attack individual liberties. Micha Ghertner tugs at the heart strings with this story:

There were two older men at the bookstore last night, both of whom were in their mid-70�s. They had been �married� for over 50 years. And yet they understood the political reality of the situation and realized that even if things go as the gay rights movement hopes for, chances are they will not have an opportunity to marry within their lifetimes. In my mind, whether you think extending marriage to homosexuals will strengthen or weaken the government�s role in the institution, at a certain point you just have to look at and sympathize with the people who are suffering from this unequal treatment under the law.

But what about these people?

Atlanta’s Human Relations Committee has ruled that a local country club is in violation of the city’s anti-discrimination ordinance by refusing to allow domestic partners the same rights as member spouses.

Atlanta Mayor Shirley Franklin has 30 days in which to react to the ruling, and according to the Atlanta Journal-Constitution, she may well pull the country club’s city licenses unless they come into compliance with the law.

Two members of the Druid Hills Country Club filed a complaint after repeatedly asking the club to change its “family-only” policies. Although psychologist Lee Kyser and lawyer Randy New both paid the $40,000 startup fee and are writing monthly checks of $475, neither of their partners is considered a member. While heterosexual spouses have full run of the club, including free green fees, neither Lawrie Demorest nor Russell Tippins can join their significant others on the links without being considered guests.

The case is a carbon copy of a dispute at Bernardo Heights Country Club in Southern California. There, Birgit Koebke joined the club in 1987, and tried unsuccessfully to enroll her partner, Kendall French, for many years. Koebke was obliged to exhaust her guest privileges and pay green fees for French, while her straight friends enjoyed unlimited golf with their wives and husbands. Koebke’s case is being pursued by Lambda Legal, and is under appeal in California state court.

Although the Atlanta case might be the first pro-gay ruling in a golf club discrimination matter, the decision follows a line of related gay rights victories. When institutions and organizations condition benefits on marriage, gay partners often find themselves on the short end of the stick.

Such legal inroads against freedom of association are happening even in advance of the legal recognition of gay marriage, but who can doubt the process will accelerate with it’s recognition?

McElroy writes:

I don�t see how the current inequality can be justified, nor can I see how using people as means can be justified.

But aren’t the private owners of the Druid Hills Country Club being used as a means to the end he seeks, and by his very argument of “equality under the law”?

I realize it may be convenient to dismiss them as bigots, but should libertarians actively endorse the use of the state to to benefit some individuals at the expense of the rights of others?

No.

55 thoughts on “Equality Under The Law?”

  1. The state should get out of marriage. Right now marriage is a statist institution. Something like:

    “Come join our club. Membership consists of one tightly coupled male and one female, because scientifically, that maximizes the chances that we can recruit more members later. The benefits of membership are that we steal less of your money, and we force others into treating the two of you as a single unit, whether they want to or not. Membership cannot be cancelled easily. In the past, we used to kidnap and extort money from people living together if they were not members of our club, but today we don’t care as much, because we make so much money.”

    Separate marriage and state!!!

  2. That’s exactly right, G.

    Good article, J. You’re dead on.

    I don’t know what it is that makes some people argue for relinquishing general principles for a short-term fix of a very special problem, but it will not do, at all.

  3. Nicely argued.

    Incidentally, this is a fine demonstration of how Libertarians, when they abandon Individualism, end up betraying Liberty and arguing for increased Statism. The only principled stand on marriage is to get the state out of it. Anything else feeds the beast.

  4. “However, it’s still stuck firmly in the mindset of treating marriage as a public policy issue. ”

    If by “it” you’re referring to my page, you’re wrong.

    As I try to say 10 different ways, marriage should be completely private.

    I often hear anarchists make claims like this, in response to persons seeking to end government involvement in private affairs, or seeking a redress of grievances against government. They say that the act of protesting, whether in words or in person, legitimizes the state and politicizes the process.

    I don’t buy that. The state was the original aggressor. The response is merely one of self-defense, political though it may be.

    If the government steals your money, and changes how it steals your money depending on how you fit its preconceived notions of marriage, or interferes with peoples’ freedom to contract with you on the basis of “marriage”, then protesting against this government discrimination, and petitioning for the government to stay out of marriage completely, does not in my view legitimize or de-legitimize government as an institution, or indicate exactly how one feels about government as a whole.

    Those are two separate moral issues. One can be against government interference of marriage, and argue the case against it, without having to make the case for or against government itself. Merely arguing against government discrimination on the basis of marriage does not legitimize the state.

    That’s like saying that killing in self-defense legitimizes weapons, so we should just lay down our weapons and be total pacifists.

    I am not in favor of “ciivil unions”, “gay marriage”, or any similar policy which is written into law. That would obviously cross the line into public policy. But I am not against petitioning the government against such policy.

    We wouldn’t be having this debate, were it not for the state already being involved. I would have never brought it up in the first place. After all, what business do strangers have, with how we choose to voluntarily associate (and possibly contract) with others?

    No, I’m not for politicization of this. It’s already too politicized. But I’m all for tearing it down, even if the process requires stooping to their level sometimes.

    Good arguments for exercising “political self-defense”:

    http://www.rationalreview.com/guest/040204.shtml

    http://www.rationalreview.com/rationalreviewold/archive/tlknapp/tlknapp010303.html

  5. I’m not objecting to the proposals you made, which as far as I can see all entail rolling back the state. There’s nothing in principle wrong with such self defense.

    When I say you treated it as public policy issue I mean the general approach is that we need to fix the state. I’m just pointing out that there is a more direct way for individuals to improve marriage – by taking their own marriages private.

    There is a golden opportunity here to go beyond political self defense and take the offensive. I find it unfortunate that this opportunity is rarely if ever touched on when marriage is addressed as a matter of public policy.

  6. Mr. Kennedy,
    “When I say you treated it as public policy issue I mean the general approach is that we need to fix the state. I’m just pointing out that there is a more direct way for individuals to improve marriage – by taking their own marriages private.”

    Exactly.

    I don’t think the state will even come after two homos who call themselves married. They just don’t want to “recognize” such marriages officially. It’s a non-issue if there ever was one.

    Why should someone care if a vile, criminal organization considers them married to their lover or not? Who cares what the US thinks?

  7. Incidentally, this is a fine demonstration of how Libertarians, when they abandon Individualism, end up betraying Liberty and arguing for increased Statism. The only principled stand on marriage is to get the state out of it. Anything else feeds the beast.

    I agree, the only principled stand is to get the state out of marriage. But what about all the time between now and then? Like it or not, mostly not, the state and its institutions still exist, despite our principles. Feeling smug about cryptography and space frontierism does nothing for us in the present.

    Legal recognition of gay marriages will not take place in a vacuum. Assuming Rauch’s preferred strategy comes to pass, and state by state gay marriage becomes a reality, conservatives are not just going to sit still. They might actually get the desire to follow through on some of that limited-government stuff they’re always talking about. (They still won’t believe it, to be sure, but in the short term it will serve their interests.) I don’t think that legally recognizing gay marriage will necessarily make it harder to roll back the state–it might be just to spark needed.

  8. Randall,

    I made two points. 1) Legal marriage produces inequality under the law, and 2) With the legalization of gay marriage your “equality under the law” argument will be used to steamroll individual rights in the private sector. You propose to benefit some individuals at the expense of the rights of others.

    You didn’t address either point.

  9. > But what about all the time between now and then?

    What in that question would not apply equally well to the public library or to the municipal water supply. Endorsing, rationalizing or ‘improving’ crime doesn’t make it not crime. The alternative to principle is corruption.

  10. You said in this thread you would favor expansion of them to give gays equal protection from private discrimination.

    No, I said I would favor expansion of marriage to gays, even if that entails wider-reaching anti-discrimination laws. But I do not favor anti-discrimination laws. I would prefer a scenario in which gays have the right to enter into marriage contracts with each other and there are no anti-discrimination laws, period.

    If fairness is the goal here, how are we to weigh the harm your proposal would do to some against the benefit to others, if harm, benefit and fairness are subjective?

    I never said fairness is the goal. Fairness is one strong intuition that leads me to oppose legally enforced inequalities. As for how one would go about weighing the harms on both sides of the ledger, I agree that it would be difficult. If the choice is merely between gay people’s right to marry and enjoy all the benefits legal marriage entails and homophobic people’s right to disassociate themselves from gay people, it appears to me that there are many more gay people who wish to get married than there are homophobic people who wish to exclude gays from associating with them. Further, based on the civil right’s movement successful effort to eliminate anti-miscegenation laws and other state-enforced methods of racial discrimination, the number of bigots in society drastically decreased in the next few decades. I would expect the same thing to happen with anti-gay sentiment.

    Is this state-sponsored social engineering? Yes, it is, and in my preferred world, it would not exist. But the current anti-gay sentiment shared by bigots is itself a result of state-sponsored social engineering, through laws which ban sodomy (and still exist in some states), and through laws which favor heterosexual unions over homosexual unions.

  11. “No, I said I would favor expansion of marriage to gays, even if that entails wider-reaching anti-discrimination laws. But I do not favor anti-discrimination laws. I would prefer a scenario in which gays have the right to enter into marriage contracts with each other and there are no anti-discrimination laws, period.”

    Assume gay marriage is legalized. It does not follow as a logical necessity that anti-discrimination “protections” in the private sector must be expanded to more fully include gays. But given that similar “protections” for others aren’t likely to go away soon don’t you in fact favor expanding them to give gays equal protection under tha law?

    And here we are talking about equal protection from free association.

  12. “What is the source for our knowledge about morality and fairness other than our personal intuitions? What objective source can you point to resolve conflicts between two people who do not share the same moral intuitions?” -MG

    Most people share mostly the same moral intuitions. People who don’t share those intutions are psychopaths. If our moral intuitions come from our genes, then they aren’t mere tastes that we arbitrarily choose. It makes sense that we should be able to make moral judgements about the actions of others, because that helps us survive. It’s good to be able to tell the difference between a person who might murder you in your sleep and a person who would kill to defend you. It’s good to be able to tell the difference between a murderer and a mere killer. If we can’t make valid moral judgements, then there is no difference.

  13. “I never said I think anti-discrimination laws are fair or lead to good consequences. I oppose them.”

    You said in this thread you would favor expansion of them to give gays equal protection from private discrimination.

    “But I oppose unequal marriage laws more.”

    If fairness is the goal here, how are we to weigh the harm your proposal would do to some against the benefit to others, if harm, benefit and fairness are subjective?

  14. “I have no problem going that way, so long as we admit that our standards of fairness and morality are ultimately based only on our subjective preferences and values.”

    What’s fair about subjective fairness? If morality and fairness are subjective then there is no fairness to be had between different individuals. There’s just Micha saying “I think it’s fair to certify these people and then force those private individuals to recognize the certification….”

  15. “My sense of fairness comes from my intuitions. My intuitions are not objective or universal.”

    Then what would make you think your’s would be of any value to me or anyone else?

    It’s all flavors of ice cream to you, “I say we all get the vanilla fairness. What could be fairer than vanilla?”

    Are yours?

    Fairness is a null concept if it doesn’t exist independent of the individual. Yes, I hold that I am apprehending objective moral reality, however incompletely. But no roof of that is necessary to demonstrate that your idea of subjective morality and justice is incoherent.

  16. Alex,

    I entirely agree with you that most people share general moral intuitions. That is why I am fairly optimistic about appeals to these intuitions, even though I do not believe they are objective.

    I do not know whether our moral intuitions come from our genes or from social construction or some combination of the two. But even insofar as they come from our genes, and even insofar as these moral intuitions help us survive, they are still not objective in the sense Randians would like, for two reasons. First, there is no objective moral imperitive in favor of survival. The universe does not care whether the human species survives. Second, even if widely shared moral principles help the group or the species survive, an individual acting in violation of these principles does not cause the group or species to become extinct. For example, any society needs some element of trust between a large portion of its members not to lie to each other and not to murder each other, else the society will collapse. But the society can continue even if a significant minority are liars and murderers.

  17. If you’re going to wield government I’m philosophically indifferent to how you divvy up indefensible loot and privileges. Libertarians ought not wield government in ways that harm people.

    So libertarians have nothing to say about how government acts? Only that it should not exist?

    I seem to recall in a previous thread how you took umbrage at certain libertarians who think the U.S. government is as bad or worse than the pre-Saddam Iraqi government. By your logic, libertarians should be “philosophically indifferent” between the two governments.

    Right?

    “Where do rights come from?”

    The very same place fairness comes from, Micha. You know what fairness is, don’t you?

    My sense of fairness comes from my intuitions. My intuitions are not objective or universal. Are yours?

  18. ” “There is no inequality under the law, since gays have as much a right to marry members of the opposite sex as straights do.” Of course, this argument is absurd, for reasons I hope I don’t have to explain.”

    You mean a government widget isn’t a widget if it’s not a widget you want?

    Or did you just realize that marriages aren’t widgets?

  19. Do you think I can be married without being legally married?

    No. I use the term in the conventional sense, to refer to a legal contractual arrangement. This is not to attach any moral or metaphysical significance to the term, but to make language clear. Cohabitation, personal committment, and any other terms you might use for a non-legal relationship are fine as far as they go, but I do not consider the term “marriage” appropriate based on common usage.

    Common-law marriages and other implicit contractual arrangements complicate the issue somewhat.

  20. Ya, I can see you explaining it to an abolitionist as he was auctioned off:

    Yep, and if I’m right and my favored change would be an improvement by increasing the speed at which slavery would be abolished, I can see you explaining to a black slave as he was auctioned off…

    And so, by the way, given existing anti-discrimination law in the private sector that’s not going away anytime soon, you do in fact favor fully granting gays the same protections even though that means holding another gun to the heads of private property owners?

    Yes. Should we bring back the prohibitions on interracial marriage so as to reduce the effect of anti-discrimination laws?

    One reason your widget/marriage analogy obviously fails is that gays can in fact legally get the widget, they can and do marry.

    This is an argument frequently used by conservatives in opposition to gay marriage: “There is no inequality under the law, since gays have as much a right to marry members of the opposite sex as straights do.” Of course, this argument is absurd, for reasons I hope I don’t have to explain.

    And I noticed that you didn’t quote the rest of what I said, where I considered the alternate interpretation of your question, “Why do you prefer legal discrimination against single people to legal discrimination by race or orientation?” I wrote, and now repeat:

    “If your question is why couples who have not signed a contract with each other should not enjoy the same legal rights as contractually protected relationships, doing so would make it prohibitively costly for hospitals to let patients accept any visitors at all. Again, this is the whole point of contracts in the first place, and why their interpretation must be based on something other than libertarian principles. Is it fair for hospitals to discriminate against non-family members? Yes, on efficiency grounds. It makes more sense to assume that patients would favor visitation by family members over non-family members in general. For the exceptions to the rule, allow parties to make special contracts (power of attorney, for example). But it would be prohibitively costly to require specific contracts from everyone, including family members.”

    The question is really how you should best continue to steal and divvy up the loot. I am indifferent to the alternatives you offer.

    Really? Even though we both agree that the two options entail theft and are undesireable, does it not matter to you that under legal rule B, blacks and gays are prohibited by law from purchasing widgets? Similarly, under both the current statist marriage regime and a statist marriage regime which permitted gay marriage, there would be a considerable amount of injustice (e.g. anti-discrimination laws), but under the present regime, there is the further injustice experienced by homosexuals.

  21. Ya, I can see you explaining it to an abolitionist as he was auctioned off: “You need to look at the big picture; obviously this isn’t a perfect solution. In a perfect world there would be no legal slaves, but we don’t live in a perfect world. Sure, this sucks for you, but on the whole it’s an improvement…”

    And so, by the way, given existing anti-discrimination law in the private sector that’s not going away anytime soon, you do in fact favor fully granting gays the same protections even though that means holding another gun to the heads of private property owners?

    “Single people enjoy the benefit of being able to visit their family members in hospitals; they just do not get to visit their husband or wife by virtue of the fact that they do not have a husband or wife.”

    You mean individuals not legally married do not get to visit their legal spouse because they don’t have one. That’s true now of anyone only willing to legally marry someone of the same sex. But gays already legally marry, and then do get to visit their legal spouses. Many gays obviously prefer not to legally marry available prospects under current law, but that’s true of any person not legally married.

    One reason your widget/marriage analogy obviously fails is that gays can in fact legally get the widget, they can and do marry.

    “Do either of these two legal rules repulse you more than the other? Of course, both are repulsive compared to a free market legal rule. Is legal rule B preferable to legal rule A because it entails less theft from taxpayers? Is legal rule B preferable to legal rule A because it entails less benefit for widget consumers relative to non-widget consumers?”

    The question is really how you should best continue to steal and divvy up the loot. I am indifferent to the alternatives you offer.

  22. It’s the law Micha.

    If there were a standard of fairness independent of the law that would mean there was a right and wrong independent of the law, a morality independent of the law. It would mean it was morally wrong to do certain things to people, which would be equivalent to saying they had a right to be free from having such things done to them, a right independent of the law.

    Are you sure you want to go that way?

  23. Ugh. This argument is getting silly and I’m not really sure what point you are trying to make. Suppose the widget is suntan lotion that only works on a certain color skin. The government refuses to make or allow other people to make suntan lotion that would work for darker skin colors. But don’t worry, the government tells black people, you are free to purchase suntan lotion for light colored skin.

    Fair?

  24. “Are you indifferent or do you prefer a return to prohibitions on interracial marriages? Are you indifferent or do you prefer a return to “whites-only” public restrooms and “whites-only” public schools?”

    If you’re going to wield government I’m philosophically indifferent to how you divvy up indefensible loot and privileges. Libertarians ought not wield government in ways that harm people.

    Where do rights come from?

    The very same place fairness comes from, Micha. You know what fairness is, don’t you?

  25. If there were a standard of fairness independent of the law that would mean there was a right and wrong independent of the law, a morality independent of the law. It would mean it was morally wrong to do certain things to people, which would be equivalent to saying they had a right to be free from having such things done to them, a right independent of the law.

    Are you sure you want to go that way?

    I have no problem going that way, so long as we admit that our standards of fairness and morality are ultimately based only on our subjective preferences and values.

    If not, where do rights come from? Where does objective morality come from?

    Ayn Rand? God? Or is that redundant?

  26. It’s very odd for Micha to be saying there is no way to secure a contract other than through state enforcement, isn’t it?

    That doesn’t have to be the case. I would much prefer a system of private enforcement of contracts. Unfortunately, the state monopoly does not permit competition.

    I’m referring to whatever benefits and privileges you think gays are denied in the absence of legal recognition of same sex marriage. Don’t such benefits and privileges entail inequality under the law between married individuals and single individuals?

    With regard to confidentiality, priests/parishoners and doctors/patients enjoy similar priveleges. Perhaps the parent/child relationship should also enjoy protection. Are special protections for these relationships fair on consequentialist grounds? I believe they are. Although perhaps confidentiality agreements could serve a similar purpose, it would be more difficult to contract in every single case. Applying confidentiality protection to certain relationships reduces contractual transaction costs.

    With regard to family visitation in hospitals, the restriction makes sense insofar as too many visitors can present a burden for hospital workers. So too, a single rule dividing visitors into two groups–family and non-family–reduces transaction costs. Perhaps contractual exceptions should be made similar to power of attorney, but it is more efficient to offer protection to direct family members in general rather than always relying upon specific contractual agreements.

    This is an element of contracts that many libertarians–especially those who think only about principles–tend to ignore. It would be prohibitively costly for contracts to encompass all possible scenarios. Judicial interpretation of contracts under common law tends to be efficient in this regard.

    Your confusion stems from the fact that you don’t recognize rights as anything but legal constructs.

    If you can show me any other justification for rights, I’d be glad to listen. I’ve yet to hear any strong arguments for the existence of abstract principles outside of their social construction. Even consequentialist arguments for natural rights (e.g. Randy Barnett in the intro to SoL) ultimately depend on subjective, although widely accepted values like peace, wealth and happiness. The principled argument for rights is itself a confusion, stemming from the fact that abstract rights are as non-existant as an abstract God or an abstract Santa Clause.

  27. Micha,

    “With regard to family visitation in hospitals, the restriction makes sense insofar as too many visitors can present a burden for hospital workers. So too, a single rule dividing visitors into two groups–family and non-family–reduces transaction costs. Perhaps contractual exceptions should be made similar to power of attorney, but it is more efficient to offer protection to direct family members in general rather than always relying upon specific contractual agreements.

    This is an element of contracts that many libertarians–especially those who think only about principles–tend to ignore. It would be prohibitively costly for contracts to encompass all possible scenarios. Judicial interpretation of contracts under common law tends to be efficient in this regard.”

    Would it be prohibitively costly for government to get out of the business of deciding who gets to make hospital visits? Are you saying that without such law hospitals would be unable to decide who gets to vist who?

    Why should legally married people get a legal benefit that those not legally married are denied?

    “If you can show me any other justification for rights, I’d be glad to listen.”

    If there are no rights but legal rights I don’t know why you are repulsed by any racial, ethnic, religious, or sexual discrimination written into law

  28. JTK,

    Are you indifferent or do you prefer a return to prohibitions on interracial marriages? Are you indifferent or do you prefer a return to “whites-only” public restrooms and “whites-only” public schools?

    Where do rights come from?

  29. Why do you prefer legal discrimination against single people to legal discrimination by race or orientation?

    I don’t prefer legal discrimination against single people. Single people enjoy the benefit of being able to visit their family members in hospitals; they just do not get to visit their husband or wife by virtue of the fact that they do not have a husband or wife. If your question is why couples who have not signed a contract with each other should not enjoy the same legal rights as contractually protected relationships, doing so would make it prohibitively costly for hospitals to let patients accept any visitors at all. Again, this is the whole point of contracts in the first place, and why their interpretation must be based on something other than libertarian principles. Is it fair for hospitals to discriminate against non-family members? Yes, on efficiency grounds. It makes more sense to assume that patients would favor visitation by family members over non-family members in general. For the exceptions to the rule, allow parties to make special contracts (power of attorney, for example). But it would be prohibitively costly to require specific contracts from everyone, including family members.

    Suppose slavery is legal. Suppose only whites can legally own slaves and only blacks can legally be slaves. Would you consider either of these an improvement?

    1) Make it legal for blacks to own slaves.

    2) Make it legal for whites to be slaves.

    Yes, I think those changes would be an improvement. White people would feel less superior to black people were those changes implemented, and would be more likely to oppose slavery out of their own self-interests. Now answer my questions please.

  30. “Are you referring to the tax code here?”

    I’m referring to whatever benefits and privileges you think gays are denied in the absence of legal recognition of same sex marriage. Don’t such benefits and privileges entail inequality under the law between married individuals and single individuals?

  31. “Without the legal right to enter into enforceable marriage contracts, gay
    people cannot simple “take their own marriages private.” “

    I’m puzzled as to why you think they can’t. Nothing prevented me from contracting with my wife without the state’s permission. Obviously I can’t depend on the state to enforce such a contract, but so what? Are you saying there is no such thing as contract without the state? That there are no contracts here and now without state approval and enforcement?

    “The current system is denying gay people the right to enter into contracts – a right that all libertarians should support, regardless of which entity currently enforces contracts.”

    A right to contract is not a right to have contracts enforced or recognized by the state.

  32. Micha: “What good is an unenforceable contract?”

    It’s as good as the word of those contracting. All things being equal, I’d prefer to contract with someone who wouldn’t send over thugs if I failed to perform.

  33. Are you repulsed by inequality under the law between married individuals and single individuals?

    Are you referring to the tax code here? If so, inequalities in the tax code do not repulse me nearly as much as contractual inequalities, possibly because it is not at all clear which direction the tax inequalities lie. Are married couples better off or worse off than single couples with regard to the tax code? I have no idea. I’ve heard people argue for both conclusions.

    A right to contract is not a right to have contracts enforced or recognized by the state.

    Then what is a right to contract? An unenforceable, verbal agreement? Under the current system, even the decisions handed down by private arbitration courts are ultimately enforced by the state. Private arbitration courts do not have the power to force their decisions upon unwilling parties. What good is an unenforceable contract?

  34. “Then what is a right to contract? An unenforceable, verbal agreement? Under the current system, even the decisions handed down by private arbitration courts are ultimately enforced by the state.”

    Your confusion stems from the fact that you don’t recognize rights as anything but legal constructs.

  35. “By excluding homosexual partnerships from that definition, homosexuals are also excluded from the benefits of hospital visitation, confidentiality, etc. I see no reason to continue excluding homosexuals from enjoying these benefits, just as I see no reason to exclude interracial couples.”

    Why do you prefer legal discrimination against single people to legal discrimination by race or orientation?

    “The current choice is between one of the following legal rules:

    A) Everyone, both gay and straight, black and white may purchase subsidized widgets from the government

    B) Only white straight people may purchase widgets from the government. Black and gay people must do without.

    Suppose slavery is legal. Suppose only whites can legally own slaves and only blacks can legally be slaves. Would you consider either of these an improvement?

    1) Make it legal for blacks to own slaves.

    2) Make it legal for whites to be slaves.

  36. Would it be prohibitively costly for government to get out of the business of deciding who gets to make hospital visits? Are you saying that without such law hospitals would be unable to decide who gets to vist who?

    There seems to be a legal distinction between family members and non-family members. Because the government is currently involved with determining who can and cannot enter into a marriage contract, the government also determines who is considered a family member. Rather than bear the transaction costs of dealing with each complaint on a case by case basis, hospitals simply point to the legal definition of family members.

    Since we do not live in a world of competing legal regimes, I do not know if and how things would work differently in such a regime compared to our current legal monopoly. Perhaps hospitals would no longer have a legal standard to rely on to help reduce transaction costs, or maybe there would be a generally accepted standard definition of family members used by most of the competing legal regimes. Under our current system, however, it is clear that hospitals and other entities use the legal definition to reduce transaction costs, and this definition in turn is determined by the government. By excluding homosexual partnerships from that definition, homosexuals are also excluded from the benefits of hospital visitation, confidentiality, etc. I see no reason to continue excluding homosexuals from enjoying these benefits, just as I see no reason to exclude interracial couples.

    Why should legally married people get a legal benefit that those not legally married are denied?

    Dammit, I just spent my entire last post addressing this issue. Why should contracts be interpreted one way and not another? This question cannot be answered with libertarian principles, but it must be answered. Written contracts do not interpret themselves and do not address all situations.

    If there are no rights but legal rights I don’t know why you are repulsed by any racial, ethnic, religious, or sexual discrimination written into law.

    In a thread on Patri’s blog, you said that screwing a dead chicken is a vice, not a crime. I assume that by calling this a vice, you are in some sense repulsed (as most of us are) by those who would screw dead chickens. But by distinguishing between vices and crimes, you certainly do not believe that screwing a dead chicken entails a violation of rights or should be illegal. So how can you be repulsed by something that you do not believe has anything at all do with a violation of abstact rights?

    I don’t like legal monopolies, but I acknowledge that they exist and will continue to exist for the foreseable future. The choice right now is not between legal monopolies and no legal monopolies, but between different kinds of legal monopolies. This is not to justify the existence of any legal monopolies, but to choose the lesser of evils. The government, of course, is the ultimate legal monopoly.

    Suppose that the government was the sole provider of widgets and banned any other potential suppliers of widgets from entering the market and competing. Consumers who want widgets must purchase them from the government. Since this is a monopoly, and monopolies tend to be less efficient and charge higher prices than competitive firms, the government subsidizes widgets with tax revenue, so that the final price charged to consumers is about the same as what would occur in a free market. Consumers do not benefit at all from this regime, but taxpayers are worse off. Both you and I agree that we would all be better off with free market provision of widgets, but that is not one of the options.

    The current choice is between one of the following legal rules:

    A) Everyone, both gay and straight, black and white may purchase subsidized widgets from the government

    B) Only white straight people may purchase widgets from the government. Black and gay people must do without.

    Do either of these two legal rules repulse you more than the other? Of course, both are repulsive compared to a free market legal rule. Is legal rule B preferable to legal rule A because it entails less theft from taxpayers? Is legal rule B preferable to legal rule A because it entails less benefit for widget consumers relative to non-widget consumers?

  37. The right to marry, like the right to own property, is not a simplistic, “principled” right, but a bundle of rights. This is precisely why I reject principled libertarianism – your principles are completely useless when dealing with complicated, actual problems. The economist Douglass North once said that “The price you pay for precision is an inability to deal with real-world issues.” He was right. You guys are living in la-la-land, not because your solutions are radical–so are mine–but because your “solutions” have no application to the actual world in which we live.

    Does the right to own a piece of land include the right to prevent airplanes from flying over head? Satellites? At what height? Does a property right in land include the right to ban all forms of trespass? What about radio waves? Light waves? Sound waves? Where are your precious principles when we really need them, hmm?

    Just like property rights, contractual rights to marry include a bundle of benefits and responsibilities, some of which currently make sense on consequentialist grounds and some of which do not. Do I believe the right to marry should include tax breaks? Of course not, because I reject taxation, on consequentialist, not principled grounds. Do I believe local country clubs should be held liable for discriminating against gay domestic partners? Of course not, because I reject anti-discrimination laws on consequentialist grounds.

    But what about the ability to confide one’s inner secrets to one’s partner without fear that this confession could be later used against the confessor in a court of law? What about the ability to visit a loved one in a hospital when only direct family members are permitted entry? What about the ability to share health care and retirement benefits with one another? What about the ability to enter into a long-term relationship with someone with the assurance that one partner will not be able to leave and take the children, wealth and other valuable things created as a result of that relationship?

    Without the legal right to enter into enforceable marriage contracts, gay people cannot simple “take their own marriages private.” The current system is denying gay people the right to enter into contracts – a right that all libertarians should support, regardless of which entity currently enforces contracts.

    Now, you could respond and say that both scenarios–the status quo and a world with gay marriage– will entail an expansion of rights and justice in some realms and a violation of rights and justice in other realms, and that there is no way to judge which scenario is better. Fine. I accept that argument, and I will arbitrarily favor the latter scenario on the grounds that at least it doesn’t entail explicit discrimination under the law.

    Do principled libertarians support a return to the marriage laws of fifty years ago when interracial marriages were prohibited? It appears that according to JTK’s logic, a principled libertarian must support such a return. Do principled libertarians support a return to the education laws of fifty years ago when blacks were effectively given a much worse education than whites? Arguably this required less theft than the present situation (ignoring later welfare spending as a result of these inequities); after all, the government simply spent less taxpayer dollars on “colored” schools than on white schools. Apply the same arguments to “colored” bathrooms and water-fountains.

    Imagine a world with “colored-only” roads, fire-departments, and police services, all of which were given significantly less tax dollars than “white-only” roads, fire-departments, and police services. Is this world preferable to ours because it is involves less taxation, even though blacks and whites face the same tax laws but get unequal benefits?

    Is this where principled libertarianism leads? If so, I want none of it. Anyone who cares about justice in an imperfect, messy world such as ours wants none of it either.

    The current choice is not between the fundamentally unjust status quo and a perfectly just anarcho-capitalist end-game. The current choice is between the fundamentally unjust status quo and a slightly-less-unjust world with equal rights for blacks and whites, gays and straights, even if that may broaden the scope of anti-discrimination laws and narrow the scope of freedom of association. Please do fight restrictions on freedom of association directly, but do not deny people the right to enter into contracts with one another simply because doing so may lead to indirect restrictions on liberty brought on by others.

    [I’d also like to note that I have no conflict of interest in making the above arguments; I am neither black nor gay, nor do I have any close family members or friends who are black or gay. I am simply repulsed by any form of racial, ethnic, religious, or sexual discrimination written into law.]

  38. If morality and fairness are subjective then there is no fairness to be had between different individuals.

    Just because something is subjective doesn’t mean it can’t be shared by different individuals. You and I both like ice cream. Our enjoyment of ice cream is subjective, but we can both talk in the same language about how much each of us likes ice cream. I can read your ice cream recommendations and know that I will probably enjoy what you enjoyed. So too, if we share similar conceptions of fairness, we can talk about the repulsiveness of legally enforced inequalities. If we don’t share anything in common in our understanding of fairness, we have no grounds for discussion.

    There’s just Micha saying “I think it’s fair to certify these people and then force those private individuals to recognize the certification….”

    I never said I think anti-discrimination laws are fair or lead to good consequences. I oppose them. But I oppose unequal marriage laws more.

    Then what would make you think your’s would be of any value to me or anyone else?

    Most people I meet have fairly similar moral intuitions about things like racism and legally enforced racial discrimination. When I run into an actual racist, I have much more difficulty talking to them, and usually don’t.

    Fairness is a null concept if it doesn’t exist independent of the individual. Yes, I hold that I am apprehending objective moral reality, however incompletely.

    Did objective morality exist before humans evolved from other animals? Or did it somehow suddenly come into being simultaneously with our existence? Will it continue to exist after humans become extinct? Can we empirically examine objective morality? Can we test it? Can we observe its existence independent of ourselves?

    What is the source for our knowledge about morality and fairness other than our personal intuitions? What objective source can you point to resolve conflicts between two people who do not share the same moral intuitions?

    But no roof of that is necessary to demonstrate that your idea of subjective morality and justice is incoherent.

    You’ve demonstrated no such proof.

  39. This debate shows why anti-discrimination laws which intrude in the private sector, and marriage laws which intrude in the private sector, must be attacked simultaneously.

    But this is probably not possible given our poltiical climate. Only incremental changes are allowed, and the checks and balances which are supposed to slow down and prevent them have not been working for decades. (I’m not sure they ever can.)

    I agree that if you had to choose one solution out of the alternatives of status quo and Micha’s, and it stayed that way forever, then Micha’s would be preferable.

    But it would be sinking ourselves deeper into state control of our lives. Now all those contracts which Micha said were supposed to simplify administration, will need to be amended with gay couple or domestic partner clauses (it will happen, believe me). That won’t be simplification, if that was the original justification for granting visitation or other benefits on the basis of marriage.

    The lure of government benefits for state-married couples is too sweet right now to make people voluntarily opt for totally private marriages without state benefit. Libertarian principles can’t overcome the lure for most people, I’m afraid. Even if those benefits are unearned and people could live without them, there’s a strong dislike of other people getting those benefits when you don’t — stronger even than not getting the benefits in the first place. (At least for me — I’m single and pay taxes every year to subsidize state-married couples.)

    The right way to start is to strike down laws which interfere with private contracts and free association on the basis of “marriage” (marriage being whatever the state calls it).

    I would not mind if laws were struck down on constitutional grounds, as imperfect as a constitution is. There’s certainly nothing in the U.S. Constitution which says Congress shall promote marriage.

    A state’s community property law could be struck down using the oft-abused 14th Amendment, saying that it denies equal protection to singles. I’m not against using the constitution to tear down the state.

    Or suppose a couple is involved in a divorce. and one side invokes state law regarding marriages saying that he/she is entitled to something from the other, on the basis of (state) marriage. If the judge agrees and rules based on state law, then the other side could appeal, and say that the law is unconstitutional because it interferes with their private contract, and because it does not apply equally to state-married and state-unmarried couples, in violation of the 14th Amendment. (I’m sure there have already been challenges like this.)

    “Marriage” as a legal concept is meaningless, really. You can define it in terms of the state’s recognition of it, and that’s what many contracts mean when they say “married”, but that merely shifts the burden of interpreting marriage from one legal jurisdiction to another — from a more local jurisdiction to more global one. But the idea of marriage remains subjective. Only with a judge’s decision does it become reified. All the current debate over gay marriage does, is choose which judge makes the decision on who’s married.

    “Marriage” is so embedded in written law and written contracts now, that it may be too hard to erase . And owing to language limitations and simple utility, there will always be this want for a shorthand term to describe certain relationships among parties, be it “marriage”, “civil union”, “cohabitors”, or whatever, and those terms will be used in contracts and law, and will only be reified by judges after disputes arise.

    Right now the state has a monopoly on the definition of “marriage”. That monopoly needs to end. All laws which mention marriage need to be challenged, especially ones which interfere with free association and private contracts. Then all private contracts which mention the term “marriage”, can be judged on their individual merits, without state laws interfering.

    The focus is also misplaced towards the state’s intentions on “marriage” (what did the state mean when it passed a law regarding “marriage”?), rather than the affected parties’ intentions on “marriage” (what did we mean when we signed a contract regarding “marriage”?). Quite frankly, people are using the state as a crutch for marriage.

    Disclosure: I am the son of a transsexual lesbian who used the Christie Lee Littleton v Prang decision in San Antonio to hir advantage. She is legally married to a female, despite being a post-op female. See: http://christielee.net/

  40. JK:
    1. All government action produces inequality. Our short-term goal should be to lessen it.
    2. I suspect that if legally recognized gay marriage becomes a reality, more moderates–the people who right now are not too sure about gay marriage–will become receptive to the idea that your private club can exclude whomever it wants.

    Assuming legislatures/judges allow the state-by-state recognition of gay marriage, all but the most radically “progessive” (who don’t get called to the bench very often) will not want a flood of lawsuits as a result (or might just hate gays), and will start enforcing existing property laws better. Another benefit of the state-by-state approach is that when New York sees that Massachusetts is now even more of a PC quasi-socialist hellhole, they’ll make provision for the same thing not to happen in New York.

    Do you think this is incorrect?

    Greg Swann: What in that question would not apply equally well to the public library or to the municipal water supply. Endorsing, rationalizing or ‘improving’ crime doesn’t make it not crime. The alternative to principle is corruption.

    I think that’s a poor analogy. A better one would be if a certain group were not allowed to use the public library, and if it would be wrong to allow them to, similar to what Micha has been saying in my absence.

  41. JTK,

    Assume gay marriage is legalized. It does not follow as a logical necessity that anti-discrimination “protections” in the private sector must be expanded to more fully include gays. But given that similar “protections” for others aren’t likely to go away soon don’t you in fact favor expanding them to give gays equal protection under tha law?

    No, I do not favor expanding anti-discrimination laws to include gays. But if that is a necessary consequence of legalizing gay marriage, I believe the harm of expanding anti-discrimination laws is less than the harm of depriving gay people of the right to marry.

  42. Micha,

    Think of legal protections from freedom of association in the private sector as monopoly government produced widgets. Assume gay marriage is legal and these are the options available today:

    A. Only straight married couples can get the widget. (Status quo)

    B. Straight and gay married couples can get the widget. (“Equality under the law”)

    How is selecting “A” now consistent with your earlier arguments? You even favored the expansion of the institution of slavery in a parallel case. Wouldn’t that license a far more massive violation of existing liberties than ‘B” in this case?

    What you’ve failed to fully appreciate is that every carrot (or widget) doled out by the state was taken from someone else by way of a stick. This is equally true in the public and private sectors.

    You’re willing to license the sale of some individuals down the river in the hope that it will enable others to make their way up the river. You’re not entitled to make such trade-offs for others.

  43. Randall,

    “1. All government action produces inequality. Our short-term goal should be to lessen it.”

    To roll back government is one thing, but to wield it on the basis of a moral calculus by which you balance benefits to some against harm to others is to embrace the collectivist principle: “We can’t improve the collective omelet without breaking a few eggs.”

    “2. I suspect that if legally recognized gay marriage becomes a reality, more moderates–the people who right now are not too sure about gay marriage–will become receptive to the idea that your private club can exclude whomever it wants.”

    They’ll roll in a heartbeat when they see gay, black, hispanic and women’s groups demonstrating for equality under the law. None of the group lobbyists will give up their existing protections without a fight that your “moderates” want no part of. They’ll roll just like you did, equality under the law is as American as apple pie.

    Those protections from freedom of association will of course be fully extended to gays in the wake of legalization of gay marriage. You’ve all agreed that it’s acceptable to screw some people to benefit others. The idea that moderates or courts will suddenly get serious about trumping that principle with property rights is absurd.

  44. I just realized something: Your whole argument, from the original post, doesn’t have any factual basis. The country club case you mention involves an unmarried gay couple. You claim that,

    Such legal inroads against freedom of association are happening even in advance of the legal recognition of gay marriage, but who can doubt the process will accelerate with it’s recognition?

    But the two issues are not connected. If anything, they are disconnected, and legalizing gay marriage will actually lessen the reach of anti-discrimination laws, at least in cases like this one. Notice the last sentence of your excerpt: “When institutions and organizations condition benefits on marriage, gay partners often find themselves on the short end of the stick.” By this reasoning, if gay marriage waslegal, these organizations would extend benefits to them. They don’t do so now because they don’t want to make a special exemption to their current benefit system.

  45. What you’ve failed to fully appreciate is that every carrot (or widget) doled out by the state was taken from someone else by way of a stick. This is equally true in the public and private sectors.

    You’re willing to license the sale of some individuals down the river in the hope that it will enable others to make their way up the river. You’re not entitled to make such trade-offs for others.

    I didn’t fail to fully appreciate this fact. Notice, in my example, that I included this very condition:

    Since this is a monopoly, and monopolies tend to be less efficient and charge higher prices than competitive firms, the government subsidizes widgets with tax revenue, so that the final price charged to consumers is about the same as what would occur in a free market. Consumers do not benefit at all from this regime, but taxpayers are worse off. … Is legal rule B preferable to legal rule A because it entails less theft from taxpayers? Is legal rule B preferable to legal rule A because it entails less benefit for widget consumers relative to non-widget consumers?

    I fully conceded that legalizing gay marriage will entail new rights violations in terms of shifting the tax burden onto others and expanding the reach of anti-discrimination laws.

    I completely agree with you that I am not entitled to make such trade-offs for others if what you mean by that is I am not entitled to force people to adhere to anti-discrimination laws. But I’ve already admitted this multiple times. I DO NOT SUPPORT ANTI-DISCRIMINATION LAWS. THERE IS NO JUSTIFICATION FOR THEM. The choice, here, however, is between two legal regimes, both of which entail coercion. I prefer violating the rights of bigots as opposed to violating the rights of homosexuals, given this constraint of choices. And to be specific, since I don’t like to talk in the language of abstract rights, I prefer denying bigots the ability to bar gay people from their organizations as opposed to denying gay people the ability to share retirement and health benefits, make medical decisions for their spouses if they become incapacitated and unable to express wishes for treatment, file for stepparent or joint adoption, apply for joint foster care rights, sue a third person for wrongful death of their spouse and loss of consortium (loss of intimacy), claim the marital communications privilege (which means a court can’t force you to disclose the contents of confidential communications between you and your spouse during your marriage), receive crime victims’ recovery benefits if the spouse is the victim of a crime, obtain domestic violence protection orders, obtain immigration and residency benefits for noncitizen spouse, obtain visiting rights in jails and other places where visitors are restricted to immediate family, among other benefits.

    I also believe that less rights violations will occur if gay marriage were legalized than if it were not. I do not think the present regime is defensible relative to a regime of legalized gay marriage.

    Now, if you want to dismiss my preference and say that there is no way to judge which scenario is worse, fine. I can’t think of any other arguments that I haven’t already used that would convince you of my position. Since I do not believe in imprescriptible abstract rights, I have no problem comparing two different actions, both of which libertarians believe to be rights violations, and judge between them to determine which is worse. The harm done to gays by denying them the ability to marry is in my mind significantly worse than the harm done to anti-gay bigots through anti-discrimination laws, just as the harm done to blacks through Jim Crow laws is significantly worse than the harm done to anti-black bigots through anti-discrimination laws.

  46. since this is such a long thread, my apologies if I missed this argument already having been made:
    The tax credit argument seems to be a libertarian-friendly argument. Offering new opportunties for tax credits is actually decreasing gov’ts funding, and curbing the horrible theft that occurs every april 15th (obviously I’m being a bit flip.) Rights based libertarianism would seem to support this tax reduction, everything else be damned.

  47. Matt,

    That’s true only if government spending is reduced along with the tax credit. If Bush’s tax cuts are any indication, that is often not the case. Spending remains the same (or increases) and the tax burden is simply shifted elsewhere.

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