March 28, 2008

Many others commit the offense, but Ryan Sager, the industrious libertarian pundit, commits it more often than most. That is, he assumes without warrant that freedom and equality are not only consistent with but in fact demand government recognition of same-sex marriage.  Sager writes, in his recent review of Grover Norquist’s book Leave Me Alone:

[T]oday’s Religious Right is hell-bent, above all else, on writing discrimination against gays into the Constitution”€”overriding states that have begun to move toward accommodating gay relationships with either civil unions or full-fledged marriage. They are . . . the ones who need to learn to leave others alone.

In other words, according to Sager, those who resist government-endorsed, same-sex marriage favor “discrimination” and can’t simply “leave others alone.”  Neither conclusion withstands scrutiny”€”provided that government-endorsed marriage is seen for what it is rather than what Sager or anyone else might assume it to be.

The right to government-endorsed marriage is no more or less than the right, upon application, to have a government bureaucracy refer to one’s relationship with another as a “marriage.”  To be sure, government-endorsed marriage happens to trigger a variety of rights and duties under state and federal law.  Some of these rights and duties are significant (for example, that “married” individuals have a duty to support each other); others fairly trivial (for example, that “married” couples are treated under the Internal Revenue Code as one shareholder for S corporation purposes). But none necessarily follows from the government’s decision to call a relationship a “marriage.” On the contrary, one could imagine a world where being “married” in the eyes of the government has no legal consequences whatsoever.  Certainly, advocates of government endorsed, same-sex marriage are not seeking simply to have the rights and duties that happen to apply to traditional marriages apply also to same-sex marriages.  Otherwise, they would (sensibly) pick and choose which rights and duties they would like to have triggered and which ones they would rather avoid.

Nor does government-endorsed marriage necessarily have any effect on individual liberty. Whether or not a government bureaucracy describes an individual as “married,”€ he can still hold a job, procreate, take walks in the park, drink soda pop or live in the same household with other individuals.  He may even choose to hold himself out to the world as “married.”€  Whether the world will accept his claim is of course another matter.  Historically, the state only began “€œrecognizing”€ marriages because it found it convenient to do so.  As “social facts,” the marriages themselves already existed and will continue to exist whether the government decides to call them “marriages” or not.

If the right to government-endorsed marriage is nothing more than the right to obtain a piece of paper from the government describing oneself as “married,” does it offend liberty or equality if the government withholds this right from anyone?  Yes”€”but it is important to see why. Any adult for any reason may wish to cause the government to refer to any one or more of his relationships as a “marriage.”  If the government denies him, then the government by definition is discriminating against him.  Thus, if the government recognizes only traditional marriages, it is discriminating against those who want the government to recognize same-sex marriages.  If the government recognizes same-sex marriages, it is discriminating against those who want the government to recognize polyamorous marriages, or bestial marriages, or autogamous marriages, or any other types of marriages.

One may say, as many do, that very few people actually want, say, autogamous marriage (i.e., marriage to oneself).  True enough. But it is equally true that relatively few people want same-sex marriage. (The movement for government endorsed same-sex marriage is driven less by those who want it for themselves than by those who want it for others.) From the perspective of freedom and equality, government-endorsed same-sex marriage is not an improvement over government-endorsed traditional marriage.  To say otherwise is to say that some people should be denied the same rights that are enjoyed by others.

In the final analysis, government-recognized marriage in any form is inconsistent with equal liberty.  All sides of marriage debate agree that a right to government recognition of marriage is worthless unless the government denies that same recognition to others.  Even advocates of same-sex marriage do not want the government to start recognizing, say, autogamous marriages, for they feel government recognized autogamous marriage would make a mockery of both same-sex and traditional marriage.  The right to government endorsed marriage is thus inherently a right to have the government discriminate against others.  Such a right by definition cannot enjoyed by everyone.  Government-endorsed marriage requires discrimination.

In reality of course, not even the most passionate same-sex marriage advocate actually cares about anything so trivial as whether the government calls same sex relationships “marriages” or not.  Government endorsed marriage is instead a means to an end. That is, impassioning both sides of the debate is the mutual conviction that, by endorsing certain relationships and not others as “marriages,” the government has the power to change people’s minds.  Thought control, in its literal sense, is what the debate over government-endorsed marriage is about.  The principled libertarian or egalitarian position is that the government should not call any relationship a “marriage” to begin with.  In the meantime, surely the movement that initiates an effort to change other people’s minds through (soft) government coercion is the greater threat to liberty than the counter-movement that merely puts up resistance.

As for Sager, he calls himself a libertarian.  But let us be clear about what he means by this: In Sager’s mind, certain thoughts are so polluted by bigotry that the government should actively be seeking to squelch them.  Correct or not, Sager’s position does not become a champion of freedom.


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