Gay Marriage is back in the public eye with the US Supreme Court hearing opening arguments for two cases this week. The laws in question are Proposition 8 (Prop 8) from California and the Defense of Marriage Act (DMA) banning federal recognition of same-sex marriages. While the talking heads debate endlessly about this topic as a matter of policy, it is the job of libertarians to reroute the debate back to principles, natural law, and morality.
In regards to liberty, there are two notions of the word “law.” The more familiar definition of law is the law of the land. These include the Constitution, civil and criminal code, court precedents, and everything on the books at the federal, state, county, and city levels. The second definition of law is more important to the libertarian. It is often referred to as “natural law.” To go into the specifics of natural law is a different post entirely but John Locke sums it up best as life, liberty, and property. Property, in this sense, includes the ability to enter into a contract.
Marriage is a tricky notion politically due to pollution by red herrings such as the debate of whether it is natural or the role of states rights in marriage recognition. These topics can be discussed ad nauseum but these debates only accomplish one thing, distraction from the issue at hand. The true debate is that of social control by the state versus contract rights.
Let’s look at marriage from a practical standpoint. If children are sired, then it is understood that both parents have guardianship. There is an agreement to share resources and to contribute to a household. In the event of sickness or death, the partner is considered to be the closest family member and assumes the responsibilities as such. Remove any religious connotations and it is simply a contract between two (or more) willing parties. To deny same-sex couples from entering such a contract is an intrusion of the state and an acknowledgement of the state’s authority to dictate the terms of private contracts. To be blunt, it is a violation of every individual’s right to property. What is worse is that any government who will tell you whom to love has no qualms to enact its tyranny when it comes to your money, your house, your health, and your business. It is a human rights violation and to assume that it stops with the marriage contract is naive at best.
Overwhelmingly, the stance that the Liberty Movement has chosen on same-sex marriage is simple and practical; give all consenting adults equal rights to enter into contracts and remove the word “marriage” from our legal code. This way, the first amendment are fully realized by keeping the state out of religious rights and sacraments. Additionally, by resolving the debate to an issue of contract rights sends a clear message that when we use the term “gay rights” we in-fact mean human rights in general, because make no mistake, a violation of gay rights IS a violation of human rights.
This stance on marriage is one of our great under-utilized assets in the Liberty Movement. There is no reason why the average homosexual must be described by either the terms “leftist” or “log-cabin.” Neither political party has championed the cause of marriage equality, even if individual politicians are in favor of it. While people have to pull out Obama’s teeth to get meager soundbites of support for marriage equality, libertarians actively and publicly support it. With the virulent nature of LGBT activism, this indicates to me that we should have a shift in strategy in our own activism techniques. We need to build coalitions with these groups to help get the message of liberty into the mainstream. The arrangement would be mutually beneficial and we would be armed with both a winning logical argument and emotional appeal.
In many ways we are helpless as we wait for the Supreme Court’s decision on Prop 8 and the DMA. Our normal techniques in our activism kit lay dormant since the Supreme Court acts autonomously and cannot be overturned except by Constitutional Amendment. In these situations, there is one thought that comforts me. We are on the right side of history. Our principles are superior and will win out in the free market of ideas while those who oppose us now will be remembered by footnotes in future history texts.
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