Equal Treatment Is Not A Principle Of Justice

I’ve mentioned a conversation on gay marriage I heard recently between Stephanie Murphy and Mark Edge on Free Talk Live. In my recent piece Marriage Recognition As A Positive Right I explained why I take exception to the comparison of marriage rights to gun rights.

I called the show and argued that the proper libertarian goal was to get the state out of marriage and that state recognition of gay marriage was a step in the wrong direction. Both Murphy and Edge resisted this argument in favor of a principle that government should treat people equally.

Stephanie Murphy stated her principle clearly

“.. actually I think one of the most important principles of liberty is that people are individuals and as such they have natural rights and they should be treated equally.”

Later she concluded with

“I think it helps people be more willing to hear you when you’re saying people should be treated equally, I mean, who could disagree with that?”

That’s certainly a common and generally respected opinion on liberty, but I strongly disagree with it. I will argue that equal treatment is not a legitimate principle of liberty or of justice. I will argue instead that “equality under the law” is a seductive and dangerous principle that, in practice, systematically erodes liberty and justice.

Murphy pointed out that current marriage law discriminates, holding that as a knockdown argument in favor of legal recognition of gay marriage. But what does equal treatment under the law mean? If the law says that marriage is a legal union between one man and one woman then so long as the law is applied to each individual equally it satisfies the formal principle of equal treatment. If it is apparent to you that such law is nevertheless unjust you should be more than half way to understanding why the principle of equality under the law is incoherent.

Wouldn’t equality under the law require recognizing gay marriage since straight marriage is recognized? My answer is that it satisfies the formal principle of equality under the law in precisely the same sense that a law defining marriage as between one man and one woman does – and that neither satisfies the principle of justice. Why not? As Murphy herself points out, legal recognition of marriage entails many state granted privileges. Those legal privileges consist primarily of positive rights – legal claims on other persons and their property. For instance the state forces businesses to provide married employees and their spouses with certain family and medical leave and also with certain insurance coverage. These are just a couple of many, many positive rights being sought by gay marriage advocates – I saw one on John Stossel’s show this week who said there were over 1,100 such privileges granted with marriage and I believe him.

So the argument via the principle of equal treatment is really saying that if you’re going to compel people to provide certain benefits to straights it’s only fair to compel people to provide the same benefits to gays. But of course it’s not fair at all – certainly it’s not fair to the people being compelled. Aggression on behalf of one person cannot justify aggression on behalf of others.

As Lynette Warren and I pointed out in Marriage, The Institutional Man, and The Sovereign Individual:

But what does the state have to offer aside from benefits? The state has nothing sacred or even moral to impart. The state has only carrots and sticks and any carrot it might offer you was taken from someone else by way of a stick. You can only defile that which is sacred or intimate in your marriage by inviting the state to take part in it.

Positive rights cannot be morally justified. And once positive rights are legally granted, people are extremely reluctant to relinquish them. Just look how difficult it is to even publicly discuss rolling back the positive legal rights entailed in Social Security and Medicare. It’s fair to say that “positive rights” are just another term for legal “entitlements”.

The principle of equal treatment is routinely used to argue for the expansion of such entitlements, and with routine success. One of the arguments for Obamacare was that since health care was provided for seniors via Medicare, it should be provided for all citizens. I heard public officials argue that all citizens should be provided with the same health benefits as members of congress – else people are not being treated equally.

Libertarians often get lost in the weeds arguing that they are for equality of opportunity, not equality of outcome. But in this they have no leg to stand on, since there is nothing intrinsic in the principle of equal treatment to identify either opportunity or outcome as the proper standard, nor is there even any coherent standard of equal opportunity.

So what is just? There is a very simple principle of justice and it has been identified by libertarians – justice is embodied in the principle of non-aggression. Aggression is unjust and the proper goal of libertarianism is to identify and curtail such injustice. That’s it.

Gays are certainly victims of government aggression, we all are. The moral remedy cannot be to impose even more unjust positive claims on their behalf. The only moral remedy is to roll back any and all aggression against them. If this seems extremely difficult, that’s because it is. But realize that rolling back aggression can only become more difficult with every additional positive right that is made law.

Does the principle of equal treatment add anything whatsoever to the principle that justice is non-aggression? Not a whit. In the absence of aggression you have justice. Equal treatment under the law, on the other hand, is a principle that strongly tends to produce an ever growing body of unjust positive claims on other people and their property.

6 thoughts on “Equal Treatment Is Not A Principle Of Justice”

  1. “I will argue instead that “equality under the law” is a seductive and dangerous principle that, in practice, systematically erodes liberty and justice.”

    Nonsense. Liberty and equality mean the same thing when it comes to authoritarianism and its rejection.

    “Gays are certainly victims of government aggression, we all are. The moral remedy cannot be to impose even more unjust positive claims on their behalf.”

    There’s something quite wrong with putting gays on the same level as non-gays in terms of being victims of government aggression (which isn’t all the aggression there is around here). And imposing unjust positive claims may be wrong in your book, but it’s right in theirs and the others.

    So I understand you’re against marriage as such, thus against gay marriage; but then until you’ve done away with straight marriage, you’d be wise not to be too assy about gays asking to be allowed to marry like straight couples.

  2. I’m not against marriage at all, gay or otherwise. I’m a big fan of marriage. There is a profound difference though between marriage and state recognition of marriage which entails positive rights.

    How can a principle of equality under the law be applied to marriage recognition when the legal status only exists to discriminate between married people and single people, married people and their employers, married people and their insurers, and etc.?

    ” And imposing unjust positive claims may be wrong in your book, but it’s right in theirs and the others. ”

    How can A claim to be satisfying the principle of equal treatment under the law while legally imposing positive claims against B? How are A and B being treated equally?

  3. On Facebook, Micha Ghertner pointed our Roderick Long’s article Equality: The Unknown Ideal. Reading that prompted me to to change the title of this article from “Equality Is Not A Principle of Justice” to “Equal Treatment Is Not A Principle of Justice”.

    This clarification was appropriate since I was explicitly criticizing equal treatment in it’s guises of equality before the law, equality of opportunity, and equality of outcome. With that correction I’m satisfied the rest of my article stands intact.

    I am far more favorable to Long’s view of equality. He essentially derives the non-aggression principle from an axiom of equal authority held be to be self-evident.

  4. The constitution declares that the rights of the individual are too numerous to mention. They only mentioned what they considered the most important. These numerous rights are called “negative, or natural, rights”…rights that can’t be granted by the govt or taken away by the govt. These are the rights to life, liberty, and the pursuit of happiness (the right to pursue your life however you feel is appropriate for your situation). This requires you and whatever govt is in existence at the time to respect that same right for other people. The Constitution gives the federal govt certain responsibilities to carry out. If an action is not listed in the Constitution, it is not a responsibility of the federal govt and is in fact a responsibility of the individual states or the individual. Applying that concept to the current situation, it becomes apparent that the federal govt, and even the state govts, are engaging in behavior prohibited by the constitution and the principle of natural rights. They are granting what are called “positive” rights, or entitlements, “rights” that favor one group over another and can be given or taken away by the govt at any time.

    Marriage is one of those actions that, from a natural rights perspective, neither the federal or state govts have the authority to interfere with. By creating laws favoring marriage between a man and a woman, they are also discriminating against singles and common-sex couples, in effect, pitting one class of people against another, and building resentment between the classes. The only moral responsibility of govt, if it has to exist at all, is to protect the rights of the individual, nothing more and nothing less. I would submit that the only reason gays want official sanction from the govt to marry, and the primary reason, besides love, that a different sex couple would want to marry, is to get those govt perks that the govt offers to favored couples. Remove the perks and remove the govt sanctions on a favored class of people, and we might find a completely different social concept developing.

    Imagine a world without official govt licensing of marriage. People would get “married” as a religious commitment, like it used to be before the govt got its collective fingers in the pie. Those that wanted to live together because of “love” or financial benefit would be free to do so without legal punishment. Legal protections that already exist in the form of contracts could be used to define how possessions, responsibilities, and any children were to be managed. Health benefits at work would also have to change to accommodate members who were certified as family.

    It can be done. It just takes people with a will to take the govt and all of its regulations completely out of the family business and return it to the religious and civil realms where it belongs.

  5. Who is the victim of the “injustice” of gay persons having the right to be married? It seems like you’re saying that we straight people would be corrupted but my question is how. That’s what I can’t seem to understand…. I realize that you wrote this in September and are probably annoyed at this. But my ignorance still exists so please enlighten me.????

  6. Clara,

    First I’m not annoyed by your comment in any way. Sorry, I hadn’t been paying too much attention to comments in the period this post was written, and I may have just found and approved you comment for the first time, a couple of years late.

    I have no objection to gays marrying, but deny that marriage requires state participation.

    Legal marriage as it stands entails positive legal rights which are impositions on others. I’m arguing that legal marriage cannot morally be expanded because of these unjust impositions on others. I give examples of such positive legal rights in another post: http://www.no-treason.com/2012/09/25/marriage-recognition-as-a-positive-right/

    Legal recognition of marriage should be abolished, not expanded.

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