Epstein: Why marriage laws are like high tariffs, with the same solution

by on November 26, 2008  •  In Marriage

From the infuriatingly libertarian, but consistent, Richard Epstein of the University of Chicago Law, a column in Forbes on Prop 8, and why the answer is to de-regulate marriage from any government licensing:

Today's harsh skirmishing over Prop 8 starts from the common assumption that the state has the right to issue marriage licenses, so that the only question worth asking is whether it can discriminate between gay and straight couples. But to the libertarian, the antecedent inquiry is whether the state has any proper role in issuing marriage licenses at all.

Historically, people married long before the state issued its licenses. As with all licenses, the libertarian demands that the state justify any restriction on individual choice. By what warrant does the state regulate marriage? Not to protect children, who need as much protection against single parents as against married couples. For that end, use laws prohibiting abuse or neglect that are tied to child custody, not marriage.

More seductively, defenders of Proposition 8 insist that it is needed to "protect" marriage. From what? Surely not against threats of force designed to prevent couples from getting married. Unfortunately here, the "protection" is not against force, but against competition. That protection is no more legitimate than using high tariffs walls to protect American producers against foreign competition.

Truth is that free entry works in both cases. It is no business of the state to prohibit relationships that offend others' deeply held beliefs….

Sound political theory offers no haven to the defenders of Proposition 8. Unfortunately, constitutional law treats them more kindly. The California Court ignored the brute historical truth that our constitutional guarantees of individual liberty were always subject to a "police power limitation" on matters of health, safety, morals and general welfare. The libertarian is comfortable with laws that protect against contagion or explosion, but decidedly not with the historical conception of morals…

It was therefore risky business for gay-rights advocates to push the constitutional button that exposed them to the counterattack of Proposition 8. …



2 Responses to Epstein: Why marriage laws are like high tariffs, with the same solution

  1. KipEsquire November 27, 2008 at 8:33 AM

    Epstein used the term “antecedent inquiry.” He did not say “the only legitimate inquiry.”

    Let the record reflect that some of us “infuriating libertarians” are gay, working for marriage equality and engaged in extensive discussions with our colleagues about the viability, or lack thereof, of the “government should get out of the marriage business” meme.

    Meanwhile, so long as “government remains in the marriage business,” libertarians — at least the ones I hang out with — are unswervingly dedicated to the priciple of equal treatment under law (even laws we’d rather not have) and are not just opposed, but downright outraged, at anti-gay laws and bigot amendments such as Prop 8. Liberal gay rights activists insult and dismiss libertarians at their peril.

    This is not a blog where I would have expected ignorant, obnoxious stereotyping. How disappointing.

  2. Nan Hunter November 27, 2008 at 11:13 AM

    Kip -

    Thanks for your comment – it allows me to clarify. I really don’t mean to be dismissive of libertarians, and certainly don’t mean to suggest that there isn’t a strong gay and pro-gay strand of libertarianism. The “infuriating” part of it to me isn’t about marriage, but about the libertarian view that government regulation is so perverse and the markets so beneficial that anti-discrimination laws in employment, for example, are uncalled for. That’s a position that Epstein and Andrew Sullivan, among others, have taken, and I strongly disagree with that. As for marriage, I tend to think that government should get out of any aspect of it associated with religion. I would tend to favor a civil unions for everyone solution, in which people could get married in whatever faith group they wanted, if they wanted, but marriage per se would be strictly religious and carry no legal consequences at all.

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