Towards A Good Samaritan World

Tuesday, December 05, 2006

THE LIBERTARIAN CASE AGAINST GAY MARRIAGE

Nato writes:

I believe that the "official" libertarian heirarchy is: 1)remove government recognition of marriage qua marriage entirely or, failing that, 2)legalize all marriage arrangements or, failing that, 3)allow any two people to marry.


That's logical! We oppose government recognition of marriage, but if we have to have it, let's have as much of it as possible! Imagine applying that to taxes. Taxation is theft, but if you're going to do it, don't discriminate by expropriating one portion of people's income, and not another portion. You'd better take it all!

The libertarian case for gay marriage I've heard is that libertarians think people should be able to form whatever contracts they want, including marriage. But do libertarians really think that people can form any kind of contract they want? I can think of at least two that most libertarians would probably not want to let people to form, which we can call slave contracts and (for lack of a better word) odd contracts.

A slave contract is something like this: if you lend me $5,000 and I fail to pay it back, I will become your slave, and do anything you want for the rest of my life. A certain type of purist libertarian might actually endorse slave contracts, but it does sort of go against the grain of libertarian rhetoric (freedom and all that). Another kind of contract the state won't, and shouldn't, enforce, is a promise like following. Suppose my needy, grasping mother is psychotically possessively towards me, and, leaning on my weak personality, she gets me to make a promise never to travel more than five miles from her; afraid of her and desperate to reassure her, I'm willing to sign anything. (Assume that I am an adult, say, 25 years old.) Five years later I regret this promise and want to leave the county. There is no document by means of which my mother can enlist the power of the state to prevent me from doing so. (In both these cases, the intuition is that there are limits to the rights that my present self should have over my future self, or, in other words, limits to my future self's obligation to subject himself to the whims of my present self.)

Marriage, viewed merely as a contract, is one part slave contract-- you make a promise for your whole life, which you can never, in the normal course of things, discharge-- and one part odd contract-- among the promises you make is a weird restriction on your sexual freedom. This is not the kind of contract the state should ordinarily endorse and enforce.

But here we come to a weak point in libertarian ideology generally: What do you do about children? Libertarians specialize in treating everyone as free agents, maximizing their choices, and letting them take the consequences, but this is not an appropriate attitude towards children. If you see someone forcing an adult into a car obviously against his will, you are witnessing a kidnapping, and you should call the cops, but if it's a child, this is probably a parent exercising legitimate and necessary authority. Libertarians seek to purge paternalism of the state towards adults, but it's absurd to try to eliminate paternalism towards children.

So children mark a sort of zone of exception to the general tenets of libertarian ideology, and one of the ramifications of this is the need to recognize marriage. A mother has obligations to, and rights over, her child; a father has obligations to, and rights over, his child; and the overlap of these rights and obligations creates a special relationship between the mother and father, which needs to be arranged beforehand and to receive government sanction to prevent its abuse. Since homosexuals can't have children this ground for government sanction of gay relationships does not apply, so the state does not have just cause to impinge on the rights of gay men's future selves to be free from the wishes of gay men's present selves.

A silly argument is sometimes made here that if marriage is just about children, then only married couples with children should have access to it. In the past, the law sometimes did require marriages to be consummated (i.e., an attempt to have children) in order to be valid, but obviously this would not only be completely impracticable but would be unduly invasive into partners' sexual lives, intentions and hopes, etc. I apologize for insulting my readers' intelligence by rehashing this no-brainer, but unfortunately Andrew Sullivan and others have sometimes introduced this as if it were a serious argument, so it needed to be addressed.

17 Comments:

  • Gay couples can adopt, of course. Lesbian couples can conceive with appropriated sperm. Many gay relationships feature stepchildren from previous heterosexual marriages. Perhaps all of that should be outlawed, to keep things legally tidy?

    But what if gay couples could, through the intercession of science, have children with 50% of each parent's DNA? Australian researchers have found fertility techniques that, if they pan out, could allow anyone with a somatic cell fertilize an egg. That would allow lesbian couples to conceive with no cloning necessary. Of course, with cloning, gay couples could conceive as well.

    Right now, of course, the future of these techniques (which were discovered in research intended to mitigate male infertility, not gay rights) is murky at best, but the question remains - if these techniques do pan out to humans in, say, ten years, does that obligate society to allow gay marriage in the the same manner as interracial marriage?

    By Blogger Nato, at 2:20 PM  

  • ...er, I meant that the research was "intended to mitigate male fertility, not advance gay rights."

    By Blogger Nato, at 2:35 PM  

  • Relevant link. It was an early method that seems unlikely (to me) to yield working methods directly, even if there were no legal impediments to human testing. On the other hand, it's awfully suggestive that at any time my above science-fiction scenario may drop the fiction part. Even if the methods are outlawed in the States, a person can always travel to the Netherlands (for example) and get preggers there. Though the timeline is unknowable, reproductive gay unions seem fairly inevitable in the long run.

    By Blogger Nato, at 2:58 PM  

  • I'm one of the libertarians that believes marriage should not be recognized by the government at all. The government doesn't recognize when you make all sorts of personal commitments, and marriage shouldn't be any different.

    Of course, the government will never not recognize marriage, and in that case I feel its only fair to allow any two people to get married. Your tax analogy is insulting (to the intellect), and barely worth a response. Inter-racial marriage, of course, is an extremely appropriate analogy, and I would imagine that most libertarians that support gay marriage see inter-racial marriage as the precedent. Gorb knows, the same people that were against inter-racial marriage are the same ones against gay marriage, and they're using almost the exact same arguments as well.

    By Blogger Thomas Reasoner, at 5:36 PM  

  • The inter-racial marriage "analogy" is often mentioned. It's easily refuted. There have been various cultural restrictions on which marriages are tolerated throughout history-- across religions, across tribes, across classes, etc.-- which are understandable in that marriage forms extended family communities, and people want to have a say in how their extended family communities develop. However, such restrictions come up against extremely strong passions on the part of the lovers themselves, creating the timeless Romeo-and-Juliet scenario. Star-crossed lovers gradually explode the boundaries that society tries to put between them; but sometimes religious or communal commitments recreate such boundaries. Thus bans on particular marital combinations appear, recede, break down, and a good deal of conflict and romance appear. All this is very traditional. Gay marriage is not. It is completely new. Some wacky upstarts at the end of the 20th century want to overturn all of human history. Every now and then people who want to overturn all human history are right, so this fact does not justify absolute certainty that gay marriage is a flash-in-the-pan; only an extremely strong presumption.

    By contrast, the ban on inter-racial marriage was an innovation pioneered in the southern states of the US. Blacks and whites had married before. Allowing inter-racial marriage was a return to tradition.

    Gay adoption should not be permitted for a very simple and obvious reason: the effects of being raised by a gay couple on a person's psyche are quite extensive and potentially harmful; it is wrong to impose something this important and fundamental on a person without their consent; and a child cannot meaningfully consent to the arrangement.

    Prohibiting Lesbian couples from conceiving children via sperm banks is probably not possible without unduly invasive action on the part of the state, but there is no reason that the state should positively endorse such experiments. Once again, it is one thing to let people make choices and take the consequences, and something quite different to let people make choices and have someone else, in this case a child, take the consequences. A child of heterosexual parents did not choose to be born, or to be born to his own parents; but at least in the basic respects he is in the same position as everyone else and cannot complain that he is being treated unfairly. The same goes for scientific advances that might allow men to conceive: the state would take on too invasive a role if it tried to prevent such things from happening, but it should not give a positive endorsement.

    By Blogger Lancelot, at 8:10 PM  

  • The effects are extensive of any parent on their child, so I will not dispute that side of your asseveration concerning gay adoption. "Possibly harmful," while true, carries little content. You possibly own a house in the Hamptons. There's no evidence to think you do, but it's remotely plausible. Similarly, the serious and ridorous studies showing the outcomes of children raised by gay parents to be at least as good as their heterosexually-parented peers could be misleading for some reason or another, but I haven't found any reason to believe so, and I've read quite a bit of the literature, for a layperson.

    As for the State positively endorsing "experiments", well, I don't see a problem with that, but if the State is going to facilitate the child-rearing of one set of parents, it seems it should - ceteris paribus - facilitate that of another.

    Finally, a note about the "unprecedented" nature of gay marriage. The nuclear family as the US and increasingly the rest of the developed world have adopted is also more or less unprecedented. It arises because our old clan structures and tribal politics have been denigrated in favor of modern economic granularity. Since gay relationships in the past could not lead to dynasties and both parties - being of the same sex - would have had the same rights*, there was little point in reifying the relationship in a wider context for which marriage was far less about individual love than it is today. Further, prohibitions on gay marriage at that time would have been strong for the same reason: clan leaders attempting to establish lasting political alliances needed their gay sons and daughters to produce progeny of mixed ancestry to guarantee fused lines of inheritance. Large numbers of stable gay relationships appear to have existed throughout history, but naming them marriages at those times must have struck the participants as both incoherent and counterproductive.

    Thank goodness we have largely left this chapter of our ignoble history behind, but neither have we entirely adapted to our new state. I think it's about time we did, though.

    *A lesbian marrying another lesbian gains no man with the cultural right to speak for her wellbeing, and a gay man marrying another gay man needs no such spokesman.

    By Blogger Nato, at 11:14 PM  

  • All right, let me respond to Nato in two ways at once.

    First, some of Nato's arguments strike me as the type of amateur sociology which makes a very dangerous basis for policy. Centuries of love poetry, Nativity plays, etc. bear witness to the timeless "human trinity" of man, woman, and child, but along comes Nato and it turns out that, unbeknownst to Shakespeare, it was all an effort at clan-preservation! I am reminded of a certain 19th-century German sociologist whose theories became the basis for a number of regimes. And this tidbit:

    "if the State is going to facilitate the child-rearing of one set of parents, it seems it should - ceteris paribus - facilitate that of another."

    Is quite chillingly flippant. Only an intellectual could possibly blind himself to the obvious fact that "ceteris" are not "paribus." For one thing, a large percentage of the population either objects to gay relationships morally, or finds them disgusting. Maybe the effect on a child of having their "parents'" relationship widely condemned instead of condoned is good, maybe bad, maybe indifferent, but regardless, the "ceteris paribus" assumption clearly has no place. (But wait, I can hear the engines of amateur sociology spinning into gear again; this is all "socialization!")

    But second, if we have a disagreement here-- Nato has his arguments, where I believe they are amateur sociology,unpersuasive and a poor basis for policy-- then guess what: our society has a pretty good system for resolving these disagreements. It's called democracy! If the majority of the American people decide that Nato's argument is convincing, and that gay marriage should be treated as parallel to straight marriage, then I will bow to their collective wisdom.

    Unfortunately, gay marriage advocates do not seem to be trying to persuade the people so much as to be imposing their views through a judicial coup d'etat, masked by the ludicrous sophistry that gay marriage was somehow implicit in constitutional or common-law provisions. As with Roe v. Wade, I am somewhat ambivalent about the policy change itself (I don't know whether the fetus is a person, nor am I sure whether gay marriage would do more good or harm) but the methods resorted to by its advocates call for unambiguous condemnation.

    By Blogger Lancelot, at 6:35 AM  

  • If it's the amateur nature of my sociological discussion of marriage as a legal status that worries you, be relieved, for I didn't come up with those ideas myself. In fact, those thoughts might never have occurred to me at all had I fewer professional medeivalists for friends (and academics in general, I suppose).

    Probably I would be close to as worried about the treatment of the children of gay folks as you seem to be if I hadn't seen the studies in which it turns out that the impact of same fades into the general statistical noise level. Further studies with larger sample sizes may reveal a statistically significant impact, of course, but ending the prohibition on veridical (legal) marriages might obviate that concern ahead of time!

    Regarding the judicially-directed efforts of gay folks, well, you might have a point. Presuming that it's wrong to decide what rights people have in the courts, perhaps gay folk might be forgiven for striving for an opportunity to demonstrate their fundamental normalness through the most expedient means available.

    Certainly my brother is a fairly conservative person and would like a chance to marry his partner and settle into all the traditional arrangements, adopting kids and just generally living like a normal person. As long as he's not married, it's a constant exercise in provisional living and exceptionalism. He's wealthy enough to where the lack of government support doesn't amount to a great deal more than an annoyance. Because of their disparity in income he and his partner pay more in taxes than an equivalent married couple filing jointly, but this is just an annoyance and a reminder of his status. The fact that his partner, a foreign national, may have a long wait for permanent resident status is a concern. The greater legal uncertainties in adopting as a gay couple with no legal status is something they have to face before they can responsibly bring children into their household.

    I forgive them their attempts to avoid relying on the opinions of those who feel that they are depraved hedonists who just want to destroy traditional marriage.

    By Blogger Nato, at 8:54 AM  

  • Actually, my critique of "amateur sociology" was a bit misleading. (Apologies.) It would be even more worrying if professional sociology became a basis for policy innovation. (An error in my last comment: Karl Marx must be considered a professional, not an amateur, sociologist.)

    re: "Presuming that it's wrong to decide what rights people have in the courts..."

    Not exactly. The courts have a legitimate and necessary role in protecting a certain sphere of individual rights against the will of the majority. That sphere of individual rights cannot include the right to terminate, or to radically alter, the life of another person. It is an abuse of the tradition of individual rights to extend this to abortion (at least, if the fetus is a person) or gay adoption.

    By Blogger Lancelot, at 9:17 AM  

  • Gay marriage will be ubiquitous in the not-so-distant future. It is an inevitability. Hopefully, it'll occur in my lifetime.

    By Blogger Thomas Reasoner, at 10:02 AM  

  • For some reason I'm reminded of the MST3K ditty.

    "In the not-too-distant future, next Sunday AD.."

    By Blogger Nato, at 11:12 AM  

  • Why aren't there talking heads out there talking about how Libertarians are attacking marriage? They are the ones who want marriage abolished! DOMA should have outlawed Libertarianism, not gay marriage.

    By Blogger Nato, at 11:15 AM  

  • Nato's remark is meant flippantly I think. But the answer is simple: libertarians who want to withdraw the government's official sanction of marriage are not insisting that ceremonies be held which have the forms of marriage but not-- from the traditional point of view-- the substance, and which are in this sense mockeries of the institution.

    Beyond that, a gay "marriage" demands public recognition, including by those who believe that it is not really a marriage at all. Will newspapers be permitted, for example, to decline to print gay "wedding" announcements? Or would that, too, be "discrimination"?

    At some point, it would become difficult for those who dissent from the new official view of marriage to maintain the distinction between real marriages and legal marriages even in private conversation, except by evolving, in effect, special code-languages of resistance.

    Libertarians who oppose all government-sanctioned marriage merely want to change the law. Gay marriage advocates want to change culture by imposing a form of newspeak on society as a whole, as a means of driving traditional values underground.

    Don't they? Otherwise, why would anyone advocate gay "marriage," rather than an institutionally equivalent but terminologically distinct system of "civil unions?"

    By Blogger Lancelot, at 12:10 PM  

  • To Nato's question:

    If government sanction of marriage was withdrawn, and it became a purely private affair, the cultural meaning of marriage would remain unchanged.

    If gay marriage were sanctioned by the state, on the other hand, it would be a culture change imposed from above. Legislation would suddenly be full of the word "marriage" used in its newfangled meaning. Newspapers would, I suppose, be required to print "wedding" announcements for gay couples. Eventually, it would be difficult to maintain the distinction between marriage and-- from the point of view of 99% of humanity-- new-fangled mock marriages, even in private conversation.

    In order to do so, traditionalists would have to develop a sort of code-language of resistance. The word "marriage" would no longer refer to what it traditionally referred to. If one wanted to refer to that (i.e., to marriage in the normal sense) what word would one use?

    It is precisely in order to use the coercive power of the state to impose a newspeak which robs traditionalists of the language in which to frame their moral concepts that gay marriage advocates want gay "marriage." Isn't it? Otherwise, why would they prefer "marriage" to an institutionally equivalent, but terminologically distinct, "civil union?"

    By Blogger Lancelot, at 12:17 PM  

  • whoops. comment disappeared then reappeared...

    By Blogger Lancelot, at 12:17 PM  

  • Would you say that gay marriages are more or less mockeries of marriage than, say, marriages resulting from Fox's "Who Wants to Marry a Millionaire"?

    Really, if two people want to commit to one-another for the rest of their lives, raise children together and so on, I really don't understand the "mockery" aspect. It's a personal thing, but it really just blows my mind.

    I will definitely agree that the point of wanting gay marriage to be called marriage rather than union is precisely because gay people want it to be publicly treated like any other marriage rather than some alien mind-meld experiment resulting in similar legal consequences. I suppose it's separate but equal and all. Permit me a moment of hyperbole when I suggest that perhaps we could have stopped at granting mixed-race unions the same legal rights as married people but calling it "civil miscegenation" or maybe "jungle union" so that racists didn't feel their own marriages were being mocked. I'm sure that would satisfy everyone.

    Anyway, call it "civil marriage" if you want. "Mark Cheney and her civil spouse, Heather Po decided to abuse Dick Cheney's grandchild by rearing him/her in a lesbian household" one could say. I doubt that the requisite "language of resistance" would prove a real difficulty to the folks who came up with the terms "partial birth abortion" and "feminazi".

    On the other hand, I can't think of good solutions to the need to continue descrimination against gay relationships in newspapers and legislation. It's probably a plot by the "gay mafia" to further erode our right to exclude them from public life.

    By Blogger Nato, at 2:30 PM  

  • Gay couples can adopt, of course. Lesbian couples can conceive with appropriated sperm. Many gay relationships feature stepchildren from previous heterosexual marriages. Perhaps all of that should be outlawed, to keep things legally tidy?


    Speaking as someone who's parents were representative of the typical low conflict, no-fault divorce, I do think that childrens are stakeholders in marriage, and that homosexuals and heterosexuals have formed unions that violate them.

    I would continue to prohibit gay marriage, I would like to treat single cohabitating parents as being in a common law marriage, and I think we need to reform our divorce laws to make divorce more difficult (but not prohibited.

    By Blogger Justin, at 10:03 AM  

Post a Comment

<< Home