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.