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.

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.

Warren Jeffs And Bin Laden

Warren Jeffs has joined Usama Bi Laden on the FBI’s Ten Most Wanted List. Everyone knows Bin Laden is considered responsible for the 9/11 terrorist attacks but what exactly is Warren Jeffs accused of? Stories about Jeffs are all over the news but the details of the charges are hard to come by. The FBI notice says:

WARREN STEED JEFFS, THE LEADER OF A POLYGAMOUS SECT, IS WANTED FOR THE ALLEGED SEXUAL ASSAULT ON A MINOR IN 2002. HE IS ALSO WANTED FOR ONE COUNT OF CONSPIRACY TO COMMIT SEXUAL CONDUCT WITH A MINOR IN 2002. THE ALLEGED OFFENSES TOOK PLACE IN THE VICINITY OF COLORADO CITY, ARIZONA. ADDITIONALLY, JEFFS IS WANTED FOR RAPE AS AN ACCOMPLICE IN UTAH.

Jeffs may be a child molester as his nephew Brent Jeffs claims. But I find the criminal charges against Warren Jeffs to be very suspicious.

He’s charged with conspiracy to commit sexual conduct with a minor and conspiracy to rape. This story is all over the news networks and print media but you have to look surprisingly hard to discover the substance of these charges. You’ll hear that he married an underage girl to an older man, but it sounds a lot less dramatic when you learn we’re talking about marrying a 16 year old woman to a 28 year old man:

In a chilling account laid out in court papers released Thursday, a woman identified as “Jane Doe” said Jeffs demanded she marry and have “husband-wife” relations with an older man despite her protests and pleas that she be released from the union.

Jane said she followed the instructions because she considered Jeffs, president of the Fundamentalist Church of Jesus Christ of Latter Day Saints, to be a prophet of God.

Utah authorities praised Jane’s courage in sharing her account with Washington County Sheriff’s Deputy Shauna Jones earlier this year and said they hope it will lead other victims to come forward.

As for Jeffs, he is “not exempt from the law despite his position or beliefs,” said Washington County Attorney Brock Belnap. “To those who may be considering coming forward with information but fear repercussions, to yourself or your family, I want you to know that we will do all in our power to respect your concerns, preserve your privacy and provide assistance.” Jeffs, 50, is a federal fugitive wanted on Arizona charges of facilitating sexual conduct with a minor. He has not been seen publicly in more than a year. Brock had asked a 5th District judge to issue a no-bail warrant, but the judge set a cash-only bail of $500,000.

Belnap would not divulge the woman’s age but said she was between ages 14 and 18 and the events occurred within the past four years. Jane’s account is backed up by photos documenting her marriage and other events she said took place.

Utah law allows a person who facilitates a rape to be charged as an accomplice, with a possible penalty of life in prison. Jeffs did not commit any sexual act with the victim and was not present when it occurred, Belnap said.

“This case is about a violation of the law by someone in a position of power and authority over a vulnerable, young girl,” Belnap said.

According to an affidavit, Jane said she met with Jeffs, who told her God had revealed she was to be joined in a “spiritual marriage” to a man identified as “John Doe.” Jane, who grew up in Hildale, told Jeffs she felt she was too young to marry. Jeffs’ reply: It was her spiritual duty to submit to the arrangement, which was “from God.” Jane said she and John were then taken to Nevada, where Jeffs performed a marriage ceremony and told them to “multiply and replenish the earth and raise children in the priesthood.” They returned to Utah and a month later John approached Jane and reminded her of Jeffs’ instructions, telling her “now was the time.” He then forced Jane to have sexual intercourse, she said.

Once again, Jane went to Jeffs and told him she did not want to stay in the marriage because she hated having “husband-wife” relations with John.

During that conversation, neither she nor Jeffs used the words “sex” or “sexual intercourse,” Jane said, because such language is not culturally permitted. But, Jane said, there was no question Jeffs understood what they were talking about.

Jeffs told her to stay in the marriage, Jane said, and do whatever John demanded because he was her priesthood leader.

“Go back and repent,” Jane said Jeffs told her. “You go give yourself mind, body and soul to your husband like you’re supposed to. He will take you into the heavenly kingdom. Go back and do what he tells you to do.” Jane said she did as instructed by Jeffs and continued to have sexual relations with John despite her objections. In a later meeting, Jeffs told Jane that in time she would grow to love John and that having a baby by him would change everything.

In another meeting, Jeffs told Jane that, “No matter what happens you cannot fight with the priesthood because if you do you’ll lose your salvation.” Those remarks frightened her enough that she stayed in the marriage, Jane said.

Her decision to speak out against the crime now brought praise from Utah officials.

“The great thing is that this young woman has demonstrated she is going to trust government,” said Utah Attorney General Mark Shurtleff. “I hope she is an example to others, who will follow suit.” Jane’s story parallels that of woman who testified before a Mohave County grand jury last summer about her own forced marriage. The woman said she was 16 when Jeffs assigned her as a plural wife to Randolph Barlow, then 28, in 2002.

Like Jane, she was taken to a motel in Caliente, Nev., where Jeffs performed their marriage ceremony. He also gave the girl and Barlow instructions to “multiply and replenish the earth.” She protested that she was too young to have children; despite that, the girl said Barlow forced her to have sexual intercourse.

Barlow now faces two assault charges and a June trial.

In Washington County on Thursday, Belnap said he has not yet decided whether to file rape charges against John. “I’m not ruling anything in or out,” Belnap said. “It is still under investigation.” Arizona has charged Jeffs with sexual conduct with a minor and conspiracy to commit sexual conduct with a minor for his role in arranging the Barlow marriage. Last June, the FBI issued a warrant for Jeffs’ arrest for fleeing prosecution on those charges. There is a $60,000 reward for information leading to his capture.

It appears that it is the Barlow case in which Jeffs is chared with rape. Oddly enough the alleged rapist does not appear to be charged with rape. So what did Jeffs actually do? He married a 16 year old to a 28 year old. That may be illegal in some states but it’s hardly a shocking event in the historical context of marriage in America. There are states in which to this day a 16 year old woman can marry entirely at her own discretion. And Jeffs also preached to the woman. And this amounts to conspiracy to rape? This appears to be a novel and imaginative charge. But it sure sounds a lot worse if you omit all details.

I suspect that the other criminal charges facing Jeffs all involve marriages of fertile young women who are legally underage, but who would have been accepted to be of marriageable age though much of U.S. history. I don’t think it’s at all fair to characterize Jeffs as a child abuser on the basis of such acts. In fact I don’t see that the criminal charges relate to moral crimes at all.

His followers better watch out though, because the talking heads are speculating that they may be involved in the next Waco or Jonestown.

Spooner: Against Woman Suffrage

I just happened to come across this:

Against Woman Suffrage
by Lysander Spooner
New Age, February 24, 1877

Women are human beings, and consequently have all the natural rights that any human beings can have. They have just as good a right to make laws as men have, and no better; AND THAT IS JUST NO RIGHT AT ALL. No human being, nor any number of human beings, have any right to make laws, and compel other human beings to obey them. To say that they have is to say that they are the masters and owners of those of whom they require such obedience.

The only law that any human being can rightfully be compelled to obey is simply the law of justice. And justice is not a thing that is made, or that can be unmade, or altered, by any human authority. It is a natural principle, inhering in the very nature of man and of things. It is that natural principle which determines what is mine and what is thine, what is one man’s right or property and what is another man’s right or property. It is, so to speak, the line that Nature has drawn between one man’s rights of person and property and another man’s rights of person and property.

This natural principle, which we will call justice, and which assigns to each and every human being, is, I repeat, not a thing that has made, but is a matter of science to be learned, like mathematics, or chemistry, or geology. And all the laws, so called, that men have ever made, either to create, define, or control the rights of individuals, were intrinsically just as absurd and ridiculous as would be laws to create, define, or control mathematics, or chemistry, or geology.

Substantially all the tyranny and robbery and crime that governments have ever committed—and they have either themselves committed, or licensed others to commit, nearly all that have ever been committed in the world by anybody—have been committed by them under the pretence of making laws. Some man, or some body of men, have claimed the right, or usurped the power, of making laws, and compelling other men to obey; thus setting up their own will, and enforcing it, in place of that natural law, or natural principle, which says that no man or body of men can rightfully exercise any arbitrary power whatever over the persons or property of other men.

There are a large class of men who are so rapacious that they desire to appropriate to their own uses the persons and properties of other men. They combined for the purpose, call themselves governments, make what they call laws, and then employ courts, and governors, and constables, and, in the last resort, bayonets, to enforce obedience.

There is another class of men, who are devoured by ambition, by the love of power, and the love of fame.

They think it a very glorious thing to rule over men; to make laws to govern them. But as they have no power of their own to compel obedience, they unite with the rapacious class before mentioned, and become their tools. They promise to make such laws as the rapacious class desire, if this latter class will but authorize them to act in their name, and furnish the money and the soldiers necessary for carrying their laws, so called, into execution.

Still another class of men, with a sublime conceit of their own wisdom, or virtue, or religion, think they have a right, and a sort of divine authority, for making laws to govern those who, they think are less wise, or less virtuous, or less religious than themselves. They assume to know what is best for all other men to do and not to do, to be and not to be, to have and not to have. And they conspire to make laws to compel all those other men to conform to their will, or, as they would say, to their superior discretion. They seem to have no perception of the truth that each and every human being has had given to him a mind and body of his own, separate and distinct from the minds and bodies of all other men; and that each man’s mind and body have, by nature, rights that are utterly separate and distinct from the rights of any and all other men; that these individual rights are really the only human rights there are in the world; that each man’s rights are simply the right to control his own soul, and body, and property, according to his own will, pleasure, and discretion, so long as he does not interfere with the equal right of any other man to the free exercise and control of his own soul, body, and property. They seem to have no conception of the truth that, so long as he lets all other men’s souls, bodies, and properties alone, he is under no obligation whatever to believe in such wisdom, or virtue, or religion as they do, or as they think best for him.

This body of self-conceited, wise, virtuous, and religious people, not being sufficiently powerful of themselves to make laws and enforce them upon the rest of mankind, combined with the rapacious and ambitious classes before mentioned to carry out such purposes as they can all agree upon. And the farce, and jargon, and Babel they all make of what they call government would be supremely ludicrous and ridiculous, if it were not the cause of nearly all the poverty, ignorance, vice, crime, and misery there are in the world.

Of this latter class—that is, the self-conceited, wise, virtuous, and religious class—are those woman suffrage persons who are so anxious that women should participate in all the falsehood, absurdity, usurpation, and crime of making laws, and enforcing them upon other persons. It is astonishing what an amount of wisdom, virtue, and knowledge they propose to inflict upon, or force into, the rest of mankind, if they can but be permitted to participate with the men in making laws. According to their own promises and predictions, there will not be a single natural human being left upon the globe, if the women can but get hold of us, and add their power to that of the men in making such laws as nobody has any right to make, and such as nobody will be under the least obligation to obey. According to their programme, we are to be put into their legislative mill, and be run through, ground up, worked over, and made into some shape in which we shall be scarcely recognized as human beings. Assuming to be gods, they propose to make us over into their own image. But there are so many different images among them, that we can have, at most, but one feature after one model, and another after another. What the whole conglomerate human animal will be like, it is impossible to conjecture.

In all conscience, it is not for us even to bear the nearly unbearable ills inflicted upon us by the laws already made,–at any rate it is not better for us to be (if we can but be permitted to be) such simple human beings as Nature made us,–than suffer ourselves to be made over into such grotesque and horrible shapes as a new set of lawmakers would make us into, if we suffer them to try their powers upon us?

The excuse which the women offer for all the laws which they propose to inflict upon us is that they themselves are oppressed by the laws that now exist. Of course they are oppressed; and so are all men—except the oppressors themselves—oppressed by the laws that are made. As a general rule, oppression was the only motive for which laws were ever made. If men wanted justice, and only justice, no laws would ever need to be made; since justice itself is not a thing that can be made. If men or women, or men and women, want justice, and only justice, their true course is not to make any more laws, but to abolish the laws—all the laws—that have already been made. When they shall have abolished all the laws that have already been made, let them give themselves to the study and observance, and, if need be, the enforcement, of that one universal law—the law of Nature—which is “the same at Rome and Athens”—in China and in England—and which man did not make. Women and men alike will then have their rights; all their rights; all the rights that Nature gave them. But until then, neither men nor women will have anything that they can call their rights. They will at most have only such liberties or privileges as the laws that are made shall see fit to allow them.

If the women, instead of petitioning to be admitted to a participation in the power of making more laws, will but give notice to the present lawmakers that they (the women) are going up to the State House, and are going to throw all the existing statute books in the fire, they will do a very sensible thing,–one of the most sensible things it is in their power to do. And they will have a crowd of men—at least all the sensible and honest men in the country to go with them.

But this subject requires a treatise, and is not to be judged of by the few words here written. Nor is any special odium designed to be cast on the woman suffragists; many of whom are undoubtedly among the best and most honest of all those foolish people who believe that laws should be made.

This has essentially been the foundation of my argument against extending legal marriage to include gays: Gays have as good a right to have their marriages legally recognized as straights have; and that is no right at all.

Missing The Big Love Boat

The HBO series Big Love is of course provoking considerable debate on polygamy. I expect most libertarians to miss the boat on this by focusing on polygamy as a matter of public policy.

I see something far more interesting here: Polygamists simply don’t recognize that government has legitimate authority over their marriages. Whereas many gays complain that they can’t marry the spouse of their choice because the government won’t permit it, polygamists simply defy the law and marry however they please.

Forget policy, polygamists are demonstrating that individuals can and do take their marriages private. As well they should:

The Sovereign Individual argues instead, that one must simply evict the state from one’s own marriage. Your marriage is not properly a matter of public debate so don’t treat it as one. Take and keep private what ought to be private. And all of your life is your private affair.

Leave the institution of marriage to the Institutional Man.

Sovereign Individuals are the Makers of Manners:

You and I cannot be confined
within the weak list of a country’s fashion
we are the makers of manners,
and the liberty that follows our places
stops the mouth of all find-faults

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.

Slaver? Moi?

When I point out that legal recognition of gay marriage entails the expansion of a morally indefensible state institution Chip Gibbons of Binary Circumstance likens me to a slaveholder:

Your position is like a plantation owner in the south keeping his slaves, while fighting any effort on the part of the slaves to keep whites as slaves. If blacks had been able to keeps whites as slaves, a lot more whites would have thought that slavery was a bad idea. When heteros are forced to pay my bills and are forced to surrender their freedom to the state, then more of them will figure out that maybe state interference in private lives isn’t such a good idea.

When state-defined and supported marriage is abolished entirely (heterosexuals will not allow that to happen anymore than slaveowners would allow the abolition of slavery), then I will no longer have to defend the efforts of same-sex couples to partake of that corrupt, slave-owning institution. But heterosexuals are not going to give up their claim on a right to have the state sanction their marriages and provide them with special benefits.

Actually I’m a consistent abolitionist. Gibbons claims to be an abolitionist but defends the expansion of the institution he knows should be abolished. To paraphrase: “Since slavery isn’t going away today, let’s get us some slaves.”

Gower:Why, the enemy is loud; you hear him all night.

Fluellen:If the enemy is an ass and a fool and a prating coxcomb, is it meet, think you, that we should also, look you, be an ass and a fool and a prating coxcomb? In your own conscience, now? – Henry V