Marriage Recognition As A Positive Right

Sunday night I was listening to Stephanie Murphy and Mark Edge on Free Talk Live (the best talk radio show on the air, by the way) and the topic of gay marriage came up. Edge alluded to a constitutional argument that New Hampshire gay marriages need to be recognized in all 50 states. Murphy then pointed out that gun rights advocates want reciprocity of state gun permits under the same constitutional principle.

The constitutional arguments don’t really interest me since the constitution has no legitimate authority, but I was struck by a profound difference between the gun rights and marriage rights being discussed – the difference between positive and negative rights. Briefly, a negative right is a right to be free from forceful interference in the conduct of one’s peaceful private affairs, while a positive right is a claim that others have a duty to provide you with something. Free speech is a classic example of a negative right, it is simply the right to not be silenced by force. When people say children have a right to an education they are usually advocating a positive right, an obligation upon others to provide such education. It should be clear that libertarians should support negative rights, not positive rights.

Gun rights are negative rights. What gun rights advocates fundamentally seek is merely to be left alone in the conduct of their own peaceful affairs. But their peaceful behavior in this sphere is criminalized to a very high degree. It is often very difficult for gun owners to remain in compliance with existing gun laws, almost impossible if they travel.

Contrast this with the situation in regard to gay marriage. First recognize that marriage is not a product of the state, what we are really talking about is state recognition of marriage. Gay marriage is recognized in a few states, but not in most. But marriage exists quite apart from legal recognition, as even the government (paradoxically) recognizes – for instance, on one level polygamous marriages are not recognized by the state, while on another level they are recognized: as crimes. Surely libertarians ought to recognize that partners in a voluntary polygamous marriage are indeed married even though their marriages are not recognized by the state. So now I’ll point out that gay marriage is allowed in all 50 states, even though it is only legally recognized in a few. Gays can marry privately, as polygamists and others do, without facing the criminal jeopardy that polygamists – and gun owners – face.

For gun owners and polygamists the mere decriminalization of their peaceful private behavior would look pretty damned close to total victory.

Gay marriage is not criminalized. No doubt there are laws on the books which violate the legitimate negative rights of gays (but that’s true of everyone) and such laws are evil on their face, but gays can marry privately without going to jail like polygamists. Insofar as there is a legitimate right to marry it is a negative right, a right to be free from forceful interference. And that negative right is not being systematically violated with respect to gay marriage.

The “rights” most gay marriage advocates are now seeking are positive rights. There is no legitimate right to have one’s marriage recognized by others. If you look at what I call my marriage and decide that it’s not really a marriage, that’s your prerogative. If you give married people a discount but decide I don’t qualify, that’s your prerogative. If you won’t rent an apartment to me and my wife because you don’t recognize our marriage, that’s your prerogative. None of these actions harm me because I don’t have any right to your recognition or your business.

But take a look at this list of “rights” that these advocates are seeking. I find nary a negative right in the list, there’s really nothing in there about being left alone. Let’s look at some clear examples:

Family and Medical Leave

The Family and Medical Leave Act (FMLA) guarantees family and medical leave to employees to care for parents, children or spouses. As currently interpreted, this law does not provide leave to care for a domestic partner or the domestic partner’s family member. Family and medical leave should be a benefit for all American workers.

That’s clearly seeking a positive right, a claim against others. Here’s another:

Employee Benefits for Federal Workers

According to the GAO Report, marital status affects over 270 provisions dealing with current and retired federal employees, members of the Armed Forces, elected officials, and judges. Most significantly, under current law, domestic partners of federal employees are excluded from the Federal Employees Health Benefits Program (FEHBP).

…and another…

Continued Health Coverage (COBRA)

Federal law requires employers to give their former employees the opportunity to continue their employer-provided health insurance coverage by paying a premium (the requirement was part of the consolidated Omnibus Budget Reconciliation Act of 1985; hence the common name COBRA). An increasing number of employers, including 198 of the Fortune 500, now offer their employees domestic partner benefits. Although this trend is encouraging, the Federal COBRA law does not require employers to provide domestic partners the continued coverage guaranteed to married couples.

…and another…

Social Security

Social Security provides the sole means of support for some elderly Americans. All working Americans contribute to this program through payroll tax, and receive payments upon retirement. Surviving spouses of working Americans are eligible to receive Social Security payments. A surviving spouse caring for a deceased employee’s minor child is also eligible for an additional support payment. Surviving spouse and surviving parent benefits are denied to gay and lesbian Americans because they cannot marry. Thus, a lesbian couple who contributes an equal amount to Social Security over their lifetime as a married couple would receive drastically unequal benefits, as set forth below.

Now I wouldn’t deny for a moment that the government is illegitimately interfering in the lives of gays, it does that to everyone. My point is that advocates for the legal recognition of gay marriage are not seeking freedom from government interference, they’re seeking positive rights under the argument that since such claims are already in the law they should be applied equally.

Principled libertarians cannot endorse the expansion of such positive rights – claims against others. To endorse that is to endorse aggression. On Free Talk Live, Mark Edge expressed doubt that legal recognition of gay marriage would entail an expansion of government. What cannot be doubted is that under existing law it would entail an expansion of positive claims against the liberty and property of others, as the examples above show. It is a terrible mistake for libertarians to support this expansion, once such positive rights have been granted people are extremely reluctant to give them up.

Yet many libertarians find arguments for equal treatment compelling. In a coming article I’ll explain why such arguments should be rejected.

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